SUPREME COURT OF QUEENSLAND

1. McMURDO P:  I agree with Muir JA.

2. MUIR JA:  Introduction

The appellant was convicted after a trial in the District Court of two counts (counts 1 and 3) of indecent dealing with a child under 16 years with the circumstances of aggravation that the victim was under 12 years of age and the child of the appellant.  Count 1 was alleged to have been committed between 31 December 2005 and 17 December 2007 at Warwick.  Counts 2 and 3 were alleged to have been committed at HerveyBay between 8 December 2007 and 17 December 2007.

Particulars of the counts on the indictment

3. The particulars provided by the learned Crown prosecutor in respect of the three counts were as follows.

4. Count 1. The appellant touched the complainant on the penis, and in the words of the complainant repeated by the prosecutor, "pulled the pink part of his penis out and also … put her finger up his bottom". It was alleged that the complainant was between five and seven years of age at the time.

5. Count 2. The insertion by the appellant of a finger in the "bottom" of the complainant one evening when on holidays in Hervey Bay as the complainant was being put to bed.

6. Count 3, also relating to an event at Hervey Bay during the holiday referred to in count 2, concerned the appellant allowing the complainant and the complainant's younger sister [C] "to use a wooden spoon on her vagina, to have a look at her vagina, to pull back parts of the vagina with a wooden spoon while [the appellant] was lying on the bed". The reference to "vagina", when used the first and second times, was no doubt intended to refer to the appellant's vulva and, when last mentioned, to her labia. It was not suggested that the misdescriptions caused any confusion or error.

The grounds of appeal

7. After amendment of the notice of appeal on the hearing, and the abandonment of two of the original grounds, the grounds relied on by the appellant were:

(1)the guilty verdict on count 1 was unreasonable and/or was not supported by the evidence;

(2)the failure of counsel for the appellant to cross-examine the complainant's siblings caused a miscarriage of justice; and

(3) the learned trial judge misdirected the jury on the meaning of indecency.

The evidence of witnesses other than the complainant, his siblings and the appellant

8. Before considering the arguments advanced in relation to the grounds of appeal, having regard to the nature of the grounds, it is desirable to set out the most pertinent parts of the evidence.

9. There were three children of the marriage of the appellant to the complainant's father. The eldest child, a daughter, [S], was born in April 1998. The complainant and his twin brother [D] were born in mid 2000 and the complainant's younger sister [C] was born in mid 2002. After the separation of the appellant and her husband in early 2003, the children lived with the appellant and spent time with their father on weekends and school holidays.

10. A psychologist, formerly working with the Bush Children's Health Service, which provided assistance to children aged 13 years and under with emotional, behavioural, or social problems, gave evidence that the complainant was one of her clients between a date early in 2007 and September or October of that year. The complainant had been referred to the Bush Children's Health Service by his school for assistance in the development of social skills as a result of his anti-social behaviour, which included lying and stealing. In the course of those sessions, the complainant said nothing to the psychologist about any inappropriate touching of him by the appellant. In January 2008, the psychologist met the appellant, who had sought assistance in relation to sexual conduct engaged in by the complainant and [C].

11. In evidence-in-chief the psychologist said of her first meeting with the appellant in 2008 that the appellant "just disclosed to me that there had been an incident where [the complainant] and his younger sister … had asked to look at her vagina and she had allowed that to happen". In another conversation a few days later, she said that "[the appellant] … just disclosed that at the time that when [the complainant] and his sister … were there when they looked at her vagina they used a wooden spoon that had been on the bed to pull back the skin around the vagina, and she had just explained that the spoon had been there because the children had been playing up the night before, so she just threatened to smack them if they wouldn't stop, I guess". Asked if the appellant had said what she was wearing at the time, the psychologist responded, "She had a towel on in that conversation. The previous one she said that she was naked".  Questioned about the duration of the touching with the spoon, the psychologist responded, "It was, she said, I think a minute.  It wasn't a long duration, it was a short duration".

12. The appellant's ex-husband gave evidence that after the appellant's return from a vacation in Hervey Bay with the children, the appellant said to him that, "… at one stage of the game [the complainant] and [C] were playing some kind of a game with a wooden spoon, they were trying to poke her in the bottom and then she said, 'So, I showed him' …". He also gave evidence of a discussion with the appellant over the telephone, participated in by his sister listening on a speaker phone, in which the appellant expressed concern about the complainant's "sexualised behaviour". The appellant, it would seem, raised the matter of seeking professional assistance. Asked what the appellant told him in the conversation, he said:

"So what did [the appellant] tell you on that occasion about this incident?-- When I asked [the appellant] just exactly if she could elaborate a little more on this spoon incident, she had said to me that, you know, she was a bit hot and bothered, that she was lying on the bed, she had a towel around her, the children were in the room, [the complainant] had a wooden spoon and was, sort of, trying, you know, have this - some kind of a game and that he eventually said, "Well, I want to have a look".  And I was like, "What was it that he wanted to look at?"  So [the appellant] then told me, "Well, I showed him and I allowed him to use the wooden spoon to" - and the words I seem to remember were like "prod, poke" and that was it, yeah."

13. Shortly after this conversation the appellant agreed to a proposal that her ex-husband's sister take the complainant to Brisbane with a view to having a social therapist discuss the complainant's behaviour with him.

14. The evidence of the appellant's ex-husband suggests that the matters revealed to him concerning the appellant's conduct in relation to the complainant occasioned him no disquiet until he had spoken to officers of the Department of Child Safety and psychologists with the Bush Children's Health Service.

15. The appellant's ex-sister-in-law gave evidence in the course of which she related what she recalled of the telephone conversation between her brother and the appellant. Her evidence was to the effect that the appellant expressed concern about the complainant's attitude to sex and stated that it was "really important that the issue be addressed". Her recollection of what the appellant said about the spoon incident in Hervey Bay was consistent with her brother's account and with the account the appellant gave in a police interview.

16. Cross-examined about what she had said to the complainant before he was first interviewed by a police officer, the appellant's ex-sister-in-law said that she had asked the complainant if he felt comfortable to talk to her "about what went on in Hervey Bay", that the spoon incident was discussed, that she asked him if he felt "safe now" and that he responded, "No … he didn't want his mother to put her finger up his bottom any more because it hurt him".

17. Under cross-examination the witness disclosed that the complainant had told her that the appellant played a game with him in which he would stand on a chair and "she would pull his doodle … using the penis as a light switch".

18. A psychologist, who had been working with the Department of Child Safety in January 2008 as an intern child safety officer, gave evidence of a conversation with the appellant on 29 January 2008, in which the appellant spoke to her about the complainant's inappropriate sexual interests. The witness, in this discussion, said that the appellant described to her aspects of the complainant's inappropriate sexual behaviour and the incident with the wooden spoon at Hervey Bay.  That account of the incident was consistent with the appellant's later account of it in her police interview.  The witness also said that the appellant had also told her that "she has grabbed his [the complainant's] penis in a fun way, not a sexual way … the statements about putting her fingers in [a] bottom and wriggling it around is not true".

19. The cross-examiner asked the witness if the appellant ever spoke "of a flicking of the penis". She responded that she recalled "something of a flicking" but couldn't say whether it was the appellant or the children who reported that.

The complainant's first record of interview

20. In an interview with a detective senior constable on 28 January 2008, after a series of questions concerning what the complainant had seen of his unclad mother and sisters, this exchange occurred between the complainant and the interviewing officer:

"JHYeah what about did you go on holidays with Mum?

KWOh [C’s] been really gross with Mum.

JHWhat was she doing?

KWUm playing with spoons with her private parts.

JHOh, where did that happen?

KWOh when we were at Hervey Bay for a holiday.  Mum was laying on the bed and Mum was laughing and [C] was there laughing pretending Mum was having a baby.

JHOh so Mum was lying on the bed?

KWAnd she was laughing and [C] was playing with wooden spoons with her private parts.

JHOh okay so how come Mum was lying on the bed, was it like day time or night time?

KWOh day time and night time because [C] does it night time and day time.

JH And what was Mum wearing when she was on the bed?

KWNaked.

JHHow come she was naked?

KWI don’t know.

JHAnd who else was there?

KWAll of us.

JHAnd what .. did you guys have clothes on?

KWYes um yeah we all had clothes on.  [C] didn’t and Mum was lying on the bed there laughing.

JHAnd what was .. what was [C] doing with the wooden spoon.

KWShe ... making noise .. she was ripping it open.

JHRipping what open?

KWAhh!!  Yeah it really is disgusting.

JHIs it.  Is it not good to talk about?

KWYes.  [C] wouldn’t even tell it to anyone.

JHOh okay and where ...?

KWAnd Dad tells us to keep it to ourselves.

JHOh okay did you tell Dad about it?

KWOh yeah [C] did.  Yeah that’s right she never keeps a secret.

JHBecause she’s only little.

KWYeah.

JHAnd did you tell Dad about it?

KWYes.

JHYeah.

KWNo I didn’t tell Dad about it.  She did.

JHOh okay and where did [C] get the wooden spoon from?

KWDownstairs at um the unit.  She ... ui ... and some of them were ours.

…

JHSo um what did Mum say when [C] was .. touched her with the ... touched her private part with the wooden spoon?

KWOh Mum just stayed there laughing.  I don’t know.

JHDid she say not to do that?

KWOh no Mum didn’t say anything.  Mum was just there laughing.

JHWhat did you say?

KWI was just saying nothing.  I was just keeping away from it.

JHOh did you do it ...?

KWAll I did was just dived in the pool.  …"

21. The transcript appears to omit an exchange or exchanges which introduced the following passage:

"KW Yes.

JH Who?

KW My parents.

JH Oh, when is that - when they’re like ... when you were a little baby?

KWYes when I was a baby and when I was six (6) and five (5) and four (4) and three (3) and two (2) and one (1).

JH And why would they have to touch you then?

KW Who knows?  I really do not know.

JH Is that just when you’re having a bath or something?

KW Sometimes when I’m having a bath.  Sometimes when I’m not.

JH Tell me a time ...?

KW I don’t know why!  I really don’t!

JHIt’s not your fault.  You haven’t done anything wrong.

KW No I haven’t done a thing.  Dad .. Dad doesn’t touch it all the time.  Dad’s only touched it once when I was a baby changing my nappy.

JH Oh okay well that’s okay.

KW But then .. but then Mum has a few times.

JH What does she do?

KWOh like she just .. she just touches it.

JH Oh when .. how old were you the last time she did that?

KW Six (6).

JH Six (6) and why did she touch it?

KW I don’t know.  She thinks it .. she thinks it was sore.

JH Oh and was it sore?

KW Yes ‘cause I just .. I was riding a bike and I made a jump and I looked at this soccer thing, that pulled the soccer nets apart and then I put it back together and I made the thing and then I went over this bit of water, well ... ui ... and I slipped on my bike and it just started to bleed.

JH Oh dear and oh is that why Mum ... ?

KW Yeah ... making sound ...

JHSo Mum had to have a look at it?  Yeah and what about other times do ..?

KW Oh yeah she does a few other times but that’s all ... ui ... sore .. that’s ... ui ...

JH Any times when it’s not sore?

KWNo.  Now can I ... ui ..."  (emphasis added)

The complainant's second record of interview

22. The same police officer conducted another interview of the complainant on 17 April 2008 in which the complainant explained that his father told him that he had to come back and see her. She asked him if he had told her things that weren't "exactly true" and he responded that he had done "The one at Hervey Bay" as well as his sister.  In that regard, the following exchange occurred:

"JH Oh okay.  Now remember you .. you were talking about um you were on holidays there - is that right?

KW Yep.

JHAnd tell me .. just tell me again what happened?

KW Well I saw [C] doing it and I said to ..."What are you doing?" and I said, "I’m poking with Mummy’s private parts".  And I said, "Why ..." and then I started um doing it and then [C] just kept on doing it and Mum said, "That’s enough."  So then I went away and then Mum started laughing what she’d been doing and then [C] started playing with Mum’s bum.

JH Mm okay.  So tell me to start off with where was Mum? 

KW She was just laying on the bed.

JHYeah.

KW And [C] woked her up um going "Mum Mum" that’s all she was doing the whole time woke her up.

JH Yeah and then what happened when she woke up, after [C] woke Mum up?

KW Um that’s when she started doing it.

JH What was .. what was Mum wearing when she was lying on the bed?

KW She was naked. She was in the nud.

JH Did she have anything on?

KW Nope.

JH Did she have like a sheet ... ?

KW Oh I think .. I think um she only had a tee shirt on and that’s all.

JH Oh okay. Okay so you said that you saw [C] doing it – now what was [C] doing?

KW She ... had one spoon that she got and then she start well me and [C] she started playing with Mum’s private parts.

JH Okay and what did Mum say about that?

KW Mum said um and then after we had enough well Mum was laughing the whole way through and she said, "That’s enough" so then I went away.  I jumped in the pool with [D] and [S].

JH Mm.

KWAnd then [C] was up there with Mum playing with her bum. 

JHHow do you know she was doing that?

KWUm oh well I .. I saw her um playing with her bum and then I saw her first while I was going to get my togs.

JH Yep.

KW So I could get in so before I left she just started playing with Mum’s bum and then I got my togs on and then I went down the stairs and then I went to the pool.

JH When you say she was playing with Mum’s bum, what was she .. what ...?

KW Oh she was just getting the spoons and put one (1) down one (1) side and one (1) down the other side and looking and opening, looking into it and ...

JH Oh okay.  And when you had the wooden spoon, what did you do?

KW All I did I only done it on Mum’s bum vagina and that’s all.

JH Yeah.

KWOh yeah.

JH And what did you do when you had the wooden spoon, was it just one (1) spoon?

KW There was like seven (7) five (5) spoons up there.

JH Oh was there.  Why was there so many spoons?

KW I don’t know [C] got them.

JH Oh.

KWFrom out of the drawer.

JH Yep, so whose idea was it to do that?

KW[C].

JH And what .. what about Mum did she say it was okay to do that?

KW Na but then Mum started laughing because she laughs at things like that.

JH Oh okay.  All right so [C] was doing it and then you got the wooden spoon and tell me what .. what did you exactly do with the wooden spoon?

KW All I did is just opened it up and then Mum’s leant over and I done it to her bum and then I got ... and then I got my togs on, jumped in the pool and swam with [D].

…

JH Oh okay.  And has anything like that ever happened before with .. looking at Mum’s bottom?

KW Um once ... ui ...

JHYeah, what sort of things?

KW Umm Mum was doing it one day and [C] was touching it with her fingers.

JH What do you mean "Mum was doing it"?

KW Well [C] was doing it I mean.  [C] just started playing .. ui ... but I ..I .. I.. yeah and my grandmother has done it to me before.  And Mum was .. when I was in bed some .. a few nights, every night I went to bed Mum would say, "Oh there’s a cord up there" and she’d pull my penis.

JH So can you say that again - so at night what happened?

KW Um well one night I was naked because um a few nights I was naked because I couldn’t find my jarmies. 

JHMm.

KWBut I had a some shorts on and then I got hot because I had a pair of jeans on and then Mum said, "There’s a cord up there" and then she pulled my penis.

JHAnd um what .. what happened then?

KW Um and then that’s all.  My grandmother, one night somebody’s dog died um from a snake and then I just got out of the shower and my grandmother started to dress me, my Mum’s Mum.

JH Mm.

KW And then she said, "I'll chop your penis in half if you don’t stop" and then she started laughing and then she started pulling it and yeah.

JH And what did you think about that?

KW I said, "It hurts" and she said, "Oh it’s only a joke" and that’s what Mum said too."

23. The complainant said that at the time of the incident with his grandmother, he was probably four, three, or two years of age. Later in the interview, the police officer returned to the topic of the appellant's touching the complainant's penis. This exchange then occurred:

"JH Yeah.  So tell me a bit more about you said about Mum when she pulled on your penis?

KW Yeah.

JHUm how long ago do you think that was when she said that?

KWLast year when I was with her.

JH Oh okay.  So was that the only time Mum ever did that - pull on your penis?

KW Yep she’s done it since 2006.  She done it last year and she done it the year before in 2006.

JHMm and tell me about those - tell me about the first time you remember her doing something like that.

KW Last year.

JH What about in 2000 ... didn’t you say something in 2006?

KW Oh yeah yeah 2006 and 2007.

JH What happened then?

KW Somebody’s eyelash is on here.

JH Oh might be one of yours.

KW I haven’t .. -ui ... I don’t know.

JH Um can you remember the first time that Mum did something like that?

KWAh the first time she ever started.

JH But what happened?

KW Oh when .. when she first done it she .. ui ... me and started playing with my penis.

JH What do you mean by that?

KW Like she started playing with it trying to wrestle me and yeah. 

JHShe was wrestling you and then what happened? 

KWYeah well we just started playing a game.

JH Yeah.

KW It was all of us four (4) kids and then Mum started playing with my private parts.

JH And were the other kids there?

KW Yep we were all there.

JH And how .. what did she do to play with your private parts?

KW Ah um how would she do it?  She started putting her hands down my pants.

JH Yeah so she put her hands down your pants and then what did she do?

KW Um then the game finished.

JH Um but when she put her hands down your pants what did she do then?

KW Oh she started playing with it and pulling it out, pulling the pink part of my penis out and things like that.  Then she started putting her finger up my bottom.

JH Was that in that same game that she put her finger up your bottom? 

What did you say when Mum did those things - did you say anything?

KW I said, "Mum stop it."

 She said, "It’s okay I’m not going to do anything to hurt you" but it actually did hurt.

 I said, "Mum it hurt" but she just kept on doing it.  She never took any notice.

JH What .. where did it hurt?

KW On my penis and my bum.

JH And when your Mum did that what did the other kids do?

KW Um they ran off and started playing a game in their room.  They were playing oh they were playing on someone’s computer that was working.  They’ve got this game called 'Roller Coaster'.

JH Oh!  So that time when you were talking about when you were all playing a game wrestling?

KW Yeah.

JH And Mum did this.

KW Yeah.

JH Um where were you - what house were you at?

KW[G] Road.

JH And was that the first time that it happened do you think?

KWUm I think she’s done it twice.

JH Mm.

KW I think she’s done it a second time.

JHSo it hasn’t happened very many times.

KW Yep.

JH No and what did you think?

Did you think that was unusual when she did that?

KW No actually ... ui ... do to me.

JH But did you say she only did it about twice or do you mean that game?

KW Ah twice I mean.  That’s what ... ui ..

JH And is there any other things that Mum’s done like that that’s made you .. that’s hurt you?

KW No."  (emphasis added)

24. The complainant said that he had told his father about such incidents whenever he saw him. After being asked if anyone else had touched his penis or his "bottom like that", he said, "No". Asked if he ever said to his mother he didn't like her doing that, he responded, "Um yeh but she always kept on doing it". He then related an incident when he was on the couch at home watching television when, as he put it, "… she was saying um that when she … she pulled my penis again and then she said … I said, 'Mum it hurts' and she said, 'it's only a game. There's no need to be worried'". He said that other children were on the couch at the time and saw what was done. The following exchange occurred:

"JH Okay you know when you said that Mum put her finger up your bottom that time when you were in the game - what did she do when she ... ?

KW Well she just started wiggling it up my bum and yeah all she does is start wiggling and she starts tickling and it doesn’t feel comfortable.

JH Tickling where?

KW Up my bottom.  When her finger is up there she starts playing on the side when she shoves her finger up.

JH And does her finger go right into your bottom?

And how many times would she have done that put her finger into your bottom?

KW She does it every time I went to bed.

JH You know when you said before it only happened twice - what did you mean it only happened twice?

KW Well that’s the only time she really did it.  She only done it two (2) times.

JH Oh okay but then you said "every time I went to bed".

KW Oh well when on the other page?

JH Yeah the thing about putting her finger up your bottom does ... ?

KW Oh she done it all the time.

JH All the time?

KWI thought you meant if my Grandma ever done it.

…

She only ... she done it twice.

JH Oh did she?

KW Yeah.

JH I thought she only did it once when you got out of the shower?

KW Well she started putting the finger up my bottom and then she started playing with my penis.

JH Your Grandma put her finger up your bottom too?

KW Yep.

JH Oh when did she do that?

KW Um when she came .. when she came over to clean the house.  She was there all day.

JHAnd did your Mum know that Grandma did that?

How did she know?

KWI told Mum.

JH And what did she say?

KW Um she didn’t say anything.

JH Yeah.  Did .. was there anyone that you thought you could talk to about it like at school or ...?

KW Well I told ... no you can’t tell the teachers them things.

JH How come?

KW Because now you’re not allowed to.  You’re not allowed to talk about things like that at school.

JH Oh okay who said that?

KW Our teachers on parade because people have been doing it and telling their friends and then their friends have tell the teacher and then you know ... ui ... at school but I wasn’t one of them.

JH Did Mum ever say that you shouldn’t tell anyone about it?

KW Yep.

JH What did she say?

KW Mum just said don’t tell anyone at school.  It’s none of their business.  And that’s really really why I’m here to tell you."  (emphasis added)

25. Questioned about the last time his mother touched his penis or put her finger in his "bottom", he said that she did it on the holiday in Hervey Bay, stating, "Yep she only did it once while we were up there, that's all."

"JH How did she put her.., how did she get her finger in there?

KW Um ..

JH Like ...

KW Up my bottom just um because that’s what she does.  She just puts her hand in my pants and then she just puts her finger up my bottom.

JH And what did you say?

KW I said, "Stop it Mum.  It hurts."

JH She said, "It’s only a joke."

KW That’s all she ever said when I said "it hurts".

 She said, "Don’t you ever do it, only parent .. parents can do that."

Cross-examination of the complainant

26. In cross-examination, the complainant said that he had told his father of inappropriate things his mother had done before he told police officers. He also said he had told Kathryn (a psychologist). He said that he'd been telling his father "things" for about 12 months before the first time he was interviewed by a police officer.  This was corrected in the course of cross-examination to having first told his father and his aunty about inappropriate conduct between himself and his mother in about January 2008 before he went to the police for the first time.  Before going to the police the second time he said that he'd spoken to two social workers, his father and his aunty.

27. The complainant said that before his first police interview he had a discussion with his aunty in the park in which she asked him about things his mother had done. He said that he did not tell the police officer everything on the first occasion because he was nervous and "thought we were in trouble". He accepted that at the time of the spoon incident the appellant told him on about five occasions to go away, to leave her alone and to stop annoying her and that she became angry. He accepted that the appellant got up from the bed before sitting back down on the bed leaning back, moving her legs apart and his then using a spoon to touch the appellant on the vagina for about a second. He agreed that the appellant remained angry but he also said that she "laughed for a little while." He said that if he had not watched a video on the morning on which he gave his evidence he would not have remembered the appellant touching him on the penis. Reminded by defence counsel of telling the police officer about "one time when your mum touched you on the penis" and asked what he remembered now, he said:

"Well, when I would go to bed every night, Mum would say there was a cord up there and she’d - she’d pull my penis.  And - and I said, "Mum, that hurt" and she said, "Oh, well, that - it shouldn't have hurt.  That was only meant to be a joke."  And then she wondered why I was crying."

28. He corrected this to say that "she did it some nights" and he then specified a particular night on which he couldn't find his pyjamas. He said he thought that she put her hands down his pants once when they were wrestling. In response to the suggestion to him that the appellant "never actually put her finger up [his] bottom", he responded, "I'm not sure about that one".

29. The complainant was cross-examined about an occasion on which he had complained to his mother of a sore penis. He accepted that the appellant had looked at it but not touched it immediately. He accepted that after she had looked at it she lent over "just flicked [him] on the penis and said, 'Don't worry, mate, it's still there'". He rejected the suggestion that that was the only time his mother had touched him on the penis. Under further questioning in which it was suggested that when kissing him goodnight there was no inappropriate conduct, the complainant said, "She'd say there was a cord up there and she'd pull my penis". In response to the suggestion that she had never touched his bottom when kissing him goodnight, he responded that he wasn't sure and couldn't remember.

The evidence of the complainant's siblings

30. [D] gave evidence that when the family were on holidays at Hervey Bay he and [S] went into the room and saw the complainant and [C] "playing with Mum .. On the rude part .. they were just .. doing things to her [with] spoons and things", the appellant said "Don't", the complainant and [C] just laughed, and the appellant "was cranky".  [D] said that the appellant was wearing pajamas with "Like a nightie" but that her "private parts" could be seen.

31. In her interview with the police officer [C] spoke of an occasion on which the complainant pulled off her mother's "undies" when she was lying on a bed in her pajamas asleep. She said that he got "spoons and things" and was poking them "up Mum's bottom". The appellant was angry, the complainant didn't stop when told to do so and was confined to his room "for the whole day" except for "dinner .. shower and lunch". She said that her other brother and sister saw this incident happen but that she did not. She said that the complainant habitually dragged her into her room, put her on her bed and looked at her "privacy". She said that she told her mother of these incidents and that the complainant "gets in trouble". She said that that was the first time that the complainant had acted in this way in relation to her mother and that she felt "very sad and disappointed". She also said that she told her father and mother about it.

32. In her interview with the police officer [S] was asked about "something that happened in Hervey Bay with Mum".  She responded, "Oh yes [the complainant] and [C] were playing with her vagina for a second .. And then Mum stopped them".  She said that it started when her mother was asleep.  She woke up and enquired "What are you doing?", they kept on playing with it and her mother said, "Stop".  Asked what the children were doing, [S] said, ".. they were looking at it and fiddling around with it".  She said that she didn't see what the children did as she went "in the last minute" and saw the complainant with his finger in the air but that she didn't actually see the children touching her mother's vagina.  She also said that their mother was wearing a nightie and had underwear on.  She said that the complainant was "obsessed with girls" and that "[the complainant] was doing stuff to [C]".  She explained that "he looked at her [C's] vagina .. and asked her to have sex and stuff".  She said that the complainant had been spoken to by their mother and father about this conduct many times.  [S] also said that in consequence of his behaviour with the appellant on the bed, the complainant was sent to his room and that [C] was sent to bed early.

The appellant's record of interview

33. In the course of an interview with police officers on 28 January 2008, the appellant, who did not give evidence in the trial, said:

"Getting back to that incident on the bed, I was really hot and bothered.  The air conditioning was on.  I’d had a shower and I’m lying doggo on the bed with my tummy down and I had my head to the side and my arms out.  And, the night before, [the complainant] was being really, really naughty and I sent both boys to bed early and I'd left a wooden spoon at the bottom of my bed.  When I was lying there, just trying to cool off, he and [C] came in and he got a wooden spoon and he started poking it.  I said, [to the complainant], go away, you’re annoying me.  I said it about five times and he wouldn’t.  So I turned around and I said right, you want to have a look, you can have a look.  And he picked up the wooden spoon and he, he was giggling as he was doing it and pulled the labial fold, like that to one side and then to the other.  He and [C] giggled, must have went and told the others.  [S] comes back in and she said aw mum, that’s disgusting.  I said, well that's where you came from.  Now because of [the complainant's] thinking which is, again it's documented though Red Cross, um because I've got a Health Science degree, I've got anatomy and physiology books and he's fascinated with anatomy and physiology, and I've even um, which I would still have on the computer the heart, um you know like the circularity system, I think I’ve done a bit on the brain because he is interested that way.  So the anatomy to me was just another part of, you know what happens with your body."

34. The appellant explained that she had a towel wrapped around her at the time this incident occurred as she had just had a shower. She said that she had spoken to Kathryn (a social worker), who told her that kids were curious but that the appellant had said she was uneasy about it because it wasn't right. The appellant was asked if she thought what happened that day was inappropriate and responded, "Aw, definitely but I, honestly at the time of everything else that was going on, I just didn't, I just had the view, I didn't even think". Asked why she didn't think the conduct was inappropriate she responded, "Because he wouldn't leave me alone, he just kept probing me ... He was just sticking the um, wooden spoon between my legs, I could see he wanted to have a look. And I would have said it five times, go away, I, I could see me escalating and that was one of the things I was working at with behaviour management with them. ... [C] didn't do anything, she was just giggling with him .. they thought it was funny". Asked where the other children were at the time she said that they must have been in the room next door "because, you know, a couple of minutes later, I have no recollection of [D] but I definitely with [S] (sic) having a conversation with her cause she said aw, mum, that's disgusting".

35. After further questioning, the appellant said, "… I realise that now (i.e. that there would have been other more appropriate conduct) but at the time … it's no different to having the sex talk to me. Yeah, I know where you're coming from and I would never do that again, and I have been wrapped over the knuckle with it". She said that this had been done by the Red Cross worker. "… I saw it as a curiosity thing. A little boy that was curios, (sic) it was no different to looking at it in the book … You know? It's no different to him bathing with his father or bathing with me, they know that. But I mean we've stopped all that, we're not allowed to have showers together and, just saw it as an extension of what were always done".

36. I now turn to a consideration of the grounds of appeal.

Inconsistent and unreasonable verdicts – the appellant's counsel's submissions

37. It is argued on behalf of the appellant that it was "an affront to logic and commonsense" for the jury to acquit on count 2 but to convict on count 1. It is also contended that inconsistencies in the complainant's evidence alone suffice to make the verdict on count 1 unsafe and that these two matters in combination demonstrate that the verdicts are unsafe.

38. The matters particularly relied on in support of these contentions were:

(1)The complainant referred to the incident the subject of count 1 only in the second interview after saying in the first interview that there were no other incidents;

(2)The complainant said his siblings were present for count 1, but the siblings were not asked about the incident in their s 93A statements and they were not reinterviewed nor cross-examined;

(3)The evidence of the intern psychologist in relation to the handling of the complainant's penis and the placement of the appellant's finger in his anus "could not be said to relate to" the matters the subject of count 1;

(4)In the pre-recorded evidence, the plaintiff said, "I still had my pants on, and she'd – on the outside of my pants, she'd go like that on my penis".  The question was asked, "So through your clothes?" and the answer was given, "Yeah .. except she didn't put her hands down my pants".  Similarly there was no evidence of count 2 in the first interview;

(5)Similarly, in respect of count 2, the complainant said that his siblings were present but there was no evidence from them about count 2;

(6)The complainant reported that his grandmother did the same thing as the incident in count 2; and

(7)The incident the subject of count 2 is said to have occurred while at HerveyBay when count 3 occurred.

Consideration of the inconsistent verdicts ground

39. The count 1 incident was described by the complainant in some detail and without hesitation.^[1]  As is shown in the above recitation of the evidence, the complainant did not appear certain that such a thing had happened again.  Despite this, he later described a similar type of incident, occurring on an occasion when he was on the couch with the other children at home^[2] and another which occurred at Hervey Bay when he and the appellant were alone.^[3]  His description of the Hervey Bay incident had the flavour of a recitation by the complainant of one event in the course of a regular pattern of conduct rather than of a specific incident of which he had a particular recollection.  Those differences are sufficient to explain why a jury may rationally have decided to acquit on count 2 but convict on count 1.

40. The principles to be applied when inconsistency in verdicts is relied on by an appellant are clearly expressed in the following passage from the reasons of Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen:^[4]

"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 (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, 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, upon this ground, 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 and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt.  Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries.

…

Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect.  In R v Kirkman, in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed:

'[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges.  Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law.  Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number.  This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries.  Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.'

We agree with these practical and sensible remarks.

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

6.The obligation to establish inconsistency of verdicts rests upon the person making the submission."  (footnotes omitted)  (emphasis added)

41. As the above discussion shows, the inconsistent verdicts on counts 1 and 2 are explicable by reference to the quite different evidence supporting each count. The jury's arrival at different conclusions on the two counts is neither illogical nor unreasonable. The tests propounded in MacKenzie v The Queen have not been satisfied.

Consideration of the unsafe and unsatisfactory ground

42. The fact that the incidents the subject of counts 1 and 2 were not referred to by the complainant in his first police interview does not, in my view, offer significant support for the appellant's argument.

43. The evidence does not suggest that the complainant had any desire to inform on or cause trouble for his mother, at least initially. Nor does it suggest that he was a particularly willing or enthusiastic participant in the first interview. Moreover, it is plain that he wished to distance himself from the wooden spoon incident which was the main focus of attention in the interview and, most probably, in discussions in which he had participated prior to the first interview. In the first interview the appellant was questioned about being "touched" by his parents. In relation to that, he gave the answers set out in paragraph [20] above concerning the circumstances in which the appellant had touched his penis. It is not particularly surprising that, having regard to the stress of being interviewed and the other matters I have mentioned, the applicant volunteered nothing about incidents of digital penetration in the first interview. The complainant's assertion in cross-examination that he did not tell the police officer everything because he was nervous and "thought we were in trouble", appears plausible.

44. The fact that the complainant's siblings said nothing about the count 1 incident in their s 93A statements means that, subject to any support the prosecution could gain from the appellant's own admissions, the count succeeded or failed on the uncorroborated evidence of the complainant: evidence which had worrying inconsistencies in significant respects.

45. The evidence of the complainant on which count 1 is based is that emphasised in paragraph [22] above. The acts of the appellant described by the complainant were done in the presence of the other children by the appellant's inserting a hand under the clothing of the complainant. As the other children were unlikely to have been able to appreciate the nature of what was occurring, unless it was described by the complainant at the time, it is not surprising that they gave no evidence about it.

46. In the first interview, the complainant's evidence was that, apart from when he was a baby, (of which he would have had no recollection anyway) his mother only touched his penis on occasions when it was sore.

47. In the second interview, the complainant commenced with the assertion that every night he went to bed his mother would say, "Oh, there's a cord up there" and pull his penis. He then proceeded to refer to "a few nights" when he had shorts on in bed when his mother did the same thing. When the police officer returned to a discussion of the appellant's pulling on the complainant's penis, the complainant said, "She done it last year and she done it the year before in 2006". Asked about the first time on which such a thing occurred, the applicant related the count 1 incident. Asked in effect, to confirm that that was the first time upon which such a thing happened, the applicant said, "Um. I think she's done it twice". He then confirmed that it hadn't happened "very many times".

48. Later in the second interview, under questioning, which, with respect, was not as clear or as concise as it could have been, the complainant said that the appellant "does it every time [he] went to bed". Reminded that he had said before it only happened twice, he said, "Well that's the only time she really did it. She only done it two (2) times". Pressed on the point, he said, "Oh she done it all the time" and explained that he thought that the questioner was referring to his grandmother's conduct. Later in the interview, questioned about what happened at Hervey Bay, the complainant said that "she only done it once while we were up there ...".

49. The uncertainty of the complainant in cross-examination about whether his mother had "actually put her finger up [his] bottom" or touched his bottom when kissing him goodnight also substantially weakened the complainant's evidence. He was not subjected to a lengthy or vigorous cross-examination and it is impossible to resist the conclusion that there was a large component of inaccuracy or exaggeration in some of his evidence.

50. Not only was the complainant's evidence demonstrably unreliable in important respects but he had a history of untruthfulness. His evidence in respect of counts 1 and 2 received no support from his father, to whom, it would appear, he made no complaint. Also, it was the appellant who initiated the approach to social workers for assistance as a result of her perception that he had become overly sexualised. That does not sit particularly comfortably with the conclusion that the appellant had been engaged in sexual conduct with the complainant. Although the complainant's failure to reveal the count 1 and count 2 incidents in his first police interview is readily understandable, the fact that this conduct was not revealed to the Bush Children's Health Service psychologist is, perhaps, a little less understandable.

51. However, not without some hesitation, I have concluded that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of count 1.^[5]

52. The complainant's evidence in respect of count 1 was not without some support. The appellant's admission to the intern psychologist of grabbing the complainant's penis "in a fun way", suggestive as it was of repetitive conduct, may be thought to offer some support for at least part of the count 1 allegation, even though the admission does not relate to any particular incident. Her admitted conduct in the wooden spoon incident was found to be indecent by the jury who may have reasoned that the appellant's conduct on that occasion and her touching of her son's penis on other occasions revealed that she had a sexual interest in him. There was no suggestion that the complainant did not feel normal affection for his mother or that he had a desire to harm her. In those circumstances, the jury may well have reasoned that the complainant was unlikely to have fabricated the count 1 incident.

A miscarriage of justice occurred through counsel's failure to cross-examine the complainant's siblings

53. It is argued that counsel for the appellant should have cross-examined on the discrepancies between the complainant's statements in his first police interview and [C's] statements in hers. Those matters concerned their respective participation in and details surrounding count 3 and the complainant's sexual conduct in relation to [C].

54. The discrepancies between the complainant's evidence and the evidence of [C] was not of much moment and there was little point in damaging [C]'s credibility. The central core of the wooden spoon incident was admitted by the appellant and confirmed, in part at least, by [D] and [S]. Much of [C]'s evidence in this regard was favourable to the appellant. She said nothing which suggested or tended or suggest that her mother's conduct was engaged in for the purposes of sexual titillation. In some respects the complainant changed his evidence in his second interview so that it conformed more closely with that of [C]. In particular, the complainant accepted that he held and used the spoon.

55. It is complained that [D] was not cross-examined on his statement in his police interview that he saw the complainant and [C] playing with the appellant "on the rude part" and that the appellant had said "Don't" to rebuke them and that she was "cranky".

56. However, there would not appear to have been much, if anything, to be gained by adopting these suggested lines of cross-examination. The first such matter was consistent with the appellant's own evidence and the second such matter, as well as being consistent with the appellant's evidence, was favourable to her case. Similar observations may be made about the matters upon which it is argued that [S] should have been cross-examined, namely, her statement to the police that:

(a)The complainant and [C] played with the appellant's vagina for "a second";

2. The appellant had been asleep before the incident started and she was woken;

3. The appellant told them to stop; and

4. It was "a little teaspoon that was used".

57. The last mentioned matter, although inconsistent with the appellant's evidence, is not of any significance in the scheme of things. The remaining complaint is that there was no questioning of the complainant's siblings on counts 1 and 2, notwithstanding that they were supposedly present when the alleged conduct occurred.

58. The failure to cross-examine in the manner suggested is readily explicable by a decision on the part of the cross-examiner not to cross-examine as the siblings had given no evidence unfavourable to the appellant in respect of those counts. That was a significant matter which defence counsel could rely on in address to cast doubt on the complainant's uncorroborated evidence. To cross-examine on those matters was to run the risk of eliciting unfavourable evidence.

59. Where the conduct of counsel in failing to cross-examine, cross-examining in a particular way, leading particular evidence, or failing to lead evidence is alleged to have resulted in a miscarriage of justice, ordinarily, the question of whether a miscarriage of justice has occurred is to be determined by an objective assessment of the conduct in question. In Nudd v R,^[6] Gleeson CJ, said in this regard:

"[8] … Similarly, where the conduct of counsel, as a participant in the trial process, is said to give rise to, or to be involved in, a miscarriage of justice, ordinarily it was what was done or omitted that is of significance, rather than why that occurred.

[9] … It is the fairness of the process that is in question; not the wisdom of counsel.  As a general rule, counsel’s decisions bind the client.  If it were otherwise, the adversarial system could not function.  The fairness of the process is to be judged in that light.  The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel’s conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct."

60. In TKWJ v The Queen,^[7] Gaudron J said:

"[31] As in the case where there is a defect or irregularity in the trial, the reason why something occurred or did not occur is relevant to the question whether, in the circumstances, there was a miscarriage of justice.  But the relevant question that must ultimately be answered, is whether the act or omission resulted in a miscarriage of justice, not whether, if it is referable to the course taken by defence counsel, it was the result of 'flagrant incompetence', 'egregious error' or the like.

[32] An accused will not ordinarily be deprived of a chance of acquittal that is fairly open if that chance is foreclosed by an informed and deliberate decision to pursue or not to pursue a particular course at trial.  As was said by Barwick CJ in relation to fresh evidence in Ratten v The Queen:

'[A trial] will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial.'

[33] Where it is claimed that a miscarriage of justice was the result of a course taken at the trial, it is for the appellant to establish that the course was not the result of an informed and deliberate decision. This he or she will fail to do if the course taken is explicable on the basis that it could have resulted in a forensic advantage unless, in the circumstances, the advantage is slight in comparison with the disadvantage resulting from the course in question.  It should be added, moreover, that where the course in question is the failure to call evidence, an appellant will not establish a miscarriage of justice unless, as with fresh evidence, the evidence is such that 'when viewed in combination with the evidence given at trial … the jury would have been likely to entertain a reasonable doubt about the guilt of the accused'."  (footnotes omitted)

61. As the above discussion reveals, the matters complained of may well have been explicable as arising from informed and deliberate decisions with a view to obtaining a forensic advantage. Moreover, it is far from apparent that the decisions of counsel in the respects complained of were erroneous. No miscarriage of justice has been identified.

An alleged misdirection on the meaning of indecency

62. It is argued that although the primary judge's direction on indecency was not incorrect, he should have added to his direction words to the effect that "'indecent' meant 'anything that is unbecoming or offensive to common propriety'". The term required, in the view of McPherson J in R v Bryant^[8], a bodily act involving moral turpitude or acting in a base and shameful manner and, in the view of Sheehan J in Bryant, conduct which is lewd or prurient and an offence against morality.

63. The primary judge gave these directions:

"Indecent.  Indecent is not a legal word, it's an everyday English word.  It means something contrary to the community's standards of decency, the current standards of decency over in our community, because standards change over the time and you have to think of current standards, that's why you are here.  It must mean, if there's to be a conviction, some sort of misconduct.  It must have a sexual element to it.  For example, just to hit a child might be violent or improper but not sexual misconduct, do you understand?  That wouldn't be indecent.  Indecent means some sexual misconduct, something contrary to the community's standards of decency and, of course, especially with regard to count 3 you've got to consider all of the circumstances at the time.  It just doesn't happen in the abstract, you've got to consider all of the surrounding circumstances, particularly about whether or not [the appellant] acted indecently in doing what she did, the subject of count 3 at Hervey Bay bearing in mind, as my note says, that we're dealing with a family.

…

Sometimes when sexual conduct is said to be indecent, it may be hard to tell if it's in what I might call the innocent category or in the indecent category, and the usual difference is to inquire was it done for sexual pleasure by the person who is accused?  Putting aside the accidental or innocent activities within the family, if a parent touches a child for the parent's sexual pleasure well, that's indecent, as opposed to it being innocent.  That's the test, really, whether there is sexual pleasure or not where at first glance it might be hard to know if it was indecent or not.

Of course, depending on the sort of touching, it is in some cases easier to demonstrate that it would be for sexual pleasure.  For example, typically, touching a girl or a boy between the legs with nothing more would ordinarily be indecent, wouldn't it, I mean?  So you have to inquire, well, what was the reason for it?  Was it for a medical reason, or something else, going to the bath?  So, doing it for sexual pleasure can then be the dividing line for those cases where there is no indecency, it is innocent, and those which are criminal offences.  That's the appropriate question I think here for you in considering the allegations against [the appellant]."

64. There is no substance in the appellant's argument on this point. It is clear from the direction given by the primary judge that the jury was instructed that, to convict, they had to find that the alleged conduct was engaged in by the appellant to obtain sexual pleasure. On any view of the matter, that test was at least as stringent as those expounded respectively by McPherson J and Sheehan J in R v Bryant.^[9]

65. It was narrower, and thus more favourable to the appellant, than the requirement that the conduct have a "sexual connotation" stated in R v Harkin.^[10]  It was not argued that no reasonable jury could have found the complainant's count 3 conduct was indecent.

Appeal against sentence

66. Although the application for leave to appeal against sentence was not pursued on the hearing of the appeal against conviction, no notice of abandonment was filed. The Court requested that the parties provide submissions on sentence.

67. Counsel for the appellant submitted that the Court could not be satisfied on the balance of probabilities that penetration of the complainant's anus by the appellant's finger occurred in relation to count 1. It was pointed out that the prosecution did not charge rape. It was submitted also that the conduct the subject of count 3 was "momentary in the context of [the appellant's] teaching her son about the human body" and that "little weight can be given to the conclusion that there must have been such sexual gratification". Counsel referred to R v HAR,^[11] in which the 48 year old applicant foster father was observed by a person, with whom he had been communicating by means of a computer connected to a webcam, to pull down the underwear of the 10 year old complainant and rub her pudenda for about 10 seconds.  The camera briefly zoomed in on the child's pudenda.  The applicant denied that the conduct had taken place and denied threatening the complainant in an endeavour to prevent her giving evidence.  He was convicted on two counts of indecent treatment of a child, one of which was set aside on appeal, and re-sentenced to 12 months imprisonment with parole recommended after six months.

68. Counsel for the respondent properly conceded that the sentencing judge had sentenced on the erroneous basis that the conviction on count 1 necessarily implied that the jury found that the appellant "both played with [her] son's penis inappropriately … and also put [her] finger up his bottom". Plainly, a guilty verdict could have been returned, consistent with the primary judge's directions, if it were found that the appellant indecently handled the complainant's penis.

69. The complainant gave conflicting evidence about anal digital penetration and this Court is not in a position to make its own findings in that regard. The sentencing judge did not do so.

70. Counsel for the respondent submitted that even without a finding of digital penetration, the sentence was not manifestly excessive. He contended that, having regard to the primary judge's directions on "indecency", the jury must have found that the charged acts were committed for the appellant's own sexual pleasure. He referred to the appellant's high position of trust and the impact of the offending conduct, not only on the complainant, but on the complainant's siblings. Also relied on was the primary judge's implicit finding, not challenged by defence counsel, that the count 1 conduct was "not an isolated incident".

71. The authorities referred to by counsel for the respondent, R v Moffatt^[12] and R v KT; ex parte A-G (Qld)^[13] do not in my view provide a great deal of assistance:  the facts of those cases are quite dissimilar to those being considered here.

72. Because of the error in sentencing identified above, this Court must exercise the sentencing discretion afresh. A distinguishing feature of this case is that the offending conduct only came to light because the appellant herself reported the conduct the subject of count 3 to social workers. She did so because she was concerned about the complainant's sexualisation. Plainly the appellant, although misguided in her conduct, had concern for the complainant.

73. The authorities support a sentence of 12 months imprisonment, but having regard to the matters I have mentioned, it is appropriate that the sentence be suspended immediately.

74. I would grant the application for leave to appeal against sentence and allow that appeal to the extent set out below.

Conclusion

75. The Orders I would make are that:

1. The appeal against conviction be dismissed.

2. The application for leave to appeal against sentence be granted and the appeal against sentence be allowed.

3. The sentences imposed at first instance be varied by their being suspended forthwith with an operational period of 12 months from the 6 August 2009.

76. DOUGLAS J:  I agree with the reasons of Muir JA and the orders proposed by him.