SUPREME COURT OF QUEENSLAND

[1]  FRASER JA: On 26 July 2010, after a six day trial in the District Court at Brisbane, a jury found the appellant guilty of two counts of maintaining an unlawful relationship of a sexual nature with a child under 16 years.  The offences were alleged to have been committed between May 2003 and April 2007.  The complainants were the appellant’s daughter, aged between two and five years of age at the time of offending, and the appellant’s son, aged between four and seven years of age at the time of offending.  At a previous trial the appellant was acquitted of an offence against another of his daughters (“A”).  On 27 July 2010 the appellant was sentenced to 12 years imprisonment on each count to be served concurrently, and a declaration of a serious violent offence was made. 

[2] At the commencement of the hearing of the appeal, the appellant abandoned his ground of appeal that the verdicts were unreasonable and could not be supported having regard to the evidence.  The appellant was also given leave to amend his notice of appeal.  The amended grounds of appeal are:

1. There was a miscarriage of justice because the summing up by the learned trial judge was inadequate and defective in failing to provide a Longman/Robinson direction which included reference to the complainant childrens’ apparent unreliability and inconsistencies in the evidence.

2. There was a miscarriage of justice because the summing up by the learned trial judge was inadequate and defective in that the direction to the jury concerning corroborative evidence failed to identify to the jury apparent inconsistencies in the evidence and the proper use the jury could make of the “corroborative” evidence for each individual count.

3. The jury were not directed of the requirement to be satisfied of the same sexual acts constituting each maintaining charge before being lawfully entitled to return a unanimous guilty verdict.  The failure to do so, and the effect of s 229B of the Criminal Code 1899 (Qld), offend ch III of the Commonwealth Constitution.

[3] I will discuss those grounds after I have first summarised the evidence.

 Summary of the evidence

[4] The complainant daughter (“D”) was five when she made her statement under s 93A of the Evidence Act 1977 (Qld) on 18 April 2007 and six when she made her second s 93A statement on 27 April 2007 and when she gave pre-recorded evidence on 19 February 2008.  She was seven when she gave pre-recorded evidence on 3 November 2008.  She described the appellant inserting his penis into her vagina and seeing “white stuff” coming out of his penis; her brother (“S”) being instructed by the appellant to put his penis in her vagina; the appellant putting his penis into S’s anus; touching of her vagina by the appellant and S; and her touching of the penis of the appellant and S.

[5] The complainant son, S, was eight when he made his s 93A statements.  He was nine when he gave pre-recorded evidence on 19 February 2008 and 3 November 2008.  He described: the appellant placing his mouth on S’s penis; the appellant touching him on his penis and pulling his penis; seeing the appellant touch his sister, D, on the “fanny” in a rubbing action when his other sister, A, was present; seeing the appellant touch A on the fanny; the appellant telling him to touch D’s private parts; the appellant telling him to put his mouth on the appellant’s penis; the appellant inserting his penis into S’s bottom; the appellant instructing S to put his penis in the appellant’s anus; seeing the appellant lick D on the private parts; and watching a pornographic movie where a girl sucked a man’s penis whilst the appellant was making the skin go up and down on his (the appellant’s) penis.

[6] A 16 year old cousin of the complainant children, M, was the only preliminary complaint witness called.  She gave pre-recorded evidence that on a day when the appellant moved house and she was in the park with the appellant’s three children, she noticed some bruising on the inside of D’s thigh; D told her that she was not looking forward to going to her father’s house; M asked D if the appellant had ever touched her and D replied “yes”; when asked where she had been touched, D said her “jinie” and pointed to her vagina; M asked S if his father had ever touched him and he said he had on the “willy”. She asked A if her father had ever touched her and she said no.  S said that their father had not touched A. M subsequently spoke to D who said that her father had been “putting his finger down below” and put a pillow over her head to stop her from crying. She spoke to D a third time about a month after the day of the appellant’s move.  M spoke to the complainants’ mother about what they had told her.  M said that D and S told their cousin C about the alleged abuse, and that D had told her mother that her father had touched her.  In cross-examination M denied that she told S and D to make up a story about the appellant touching them, and she denied telling their cousin C that she was “just joking” or “kidding”.

[7] Dr Rogers examined S and Dr Waugh examined D.  There was no medical or physical evidence of sexual abuse, but both expressed the opinion that the absence of such evidence did not mean the alleged sexual conduct did not occur.  Dr Waugh gave evidence of the ability of the hymen to heal without any scar or notches even after trauma.

[8] The appellant’s wife at the time of the alleged offences gave evidence in the Crown case about the living arrangements of the appellant, the complainants, and their mother (who lived in the house as a friend of the appellant after their relationship ended).

[9] The appellant gave and called evidence.  He denied any inappropriate contact with the complainants, but gave evidence that both complainants required cream to be put on their private areas, including cream that was prescribed by a doctor when S caught his penis in his zipper.

[10]  The complainants’ mother gave evidence that M was not trusted and that she did not trust her to look after the children on her own. Both D and S required cream for heat rash on their legs and private areas. She did not have any cream for when S caught his penis in his pants zipper but she recalled that he was required to keep it clean.  She could not remember all of the details. On one of the days that she was moving house in February 2007, the complainants’ cousin C told her what M had said about the appellant abusing the complainants.  M said that it was a joke and that she was kidding.  The complainants’ mother asked C to talk to D and S. The following day she asked D if the appellant had touched her inappropriately and D said he had not.  In her opinion D was not lying. She never asked S or the complainants’ sister A about whether the appellant had touched them.

[11]  The complainants’ cousin C gave evidence that D and S told her that the appellant had “been touching” them.  M was present at the time they said this to her.  She then spoke to D and S separately and each said that M had told them to tell her that the appellant had touched them.  She argued with M after she spoke to the children.  She later told the complainants’ mother what she had been told about the alleged abuse.  M said it was a joke and that she did not mean any of it. C did not recall seeing chaffing on the complainants’ bodies but the appellant had told her that he had put cream on parts of their bodies for chaffing.  She had once seen the appellant put cream on the girls inside their legs. She did not mention M putting the children up to making the allegations until she was in foster care.  She conceded that she wanted to get out of foster care.

Ground one:  failure to provide a Longman/Robinson direction which included reference to the complainant childrens’ apparent unreliability and inconsistencies in the evidence

[12]  Under the first ground of appeal, the appellant argued that there was a miscarriage of justice because the trial judge’s warning to the jury not to act on the complainants’ evidence unless the jury was convinced of its truth and accuracy did not refer to the complainants’ apparent unreliability and inconsistencies in the evidence.

[13] In addressing the jury defence counsel had relied upon the following inconsistencies in the evidence:

(a) S allegedly said to M that his sister A was touched, however, in S’s s 93A statement he said that A was never touched. D also said that A was never touched.

(b) S said the appellant licked D but D made no complaint about that.

(c) S said no penetration of D occurred but D said that it had happened. S said A was penetrated another time.

(d) Made no mention of oral sex but S said that it had occurred.

(e) S did not say that he had put his penis into D’s vagina, but D said that he had.

(f) S said nothing happened at their “Nan’s” house, but D said that it had. (In fact, S did not clearly give this evidence.).

(g) M said that she was told by one of the children that a pillow was put on their head, however neither child described that.

[14] In summing up to the jury the trial judge gave the following “Robinson direction” [1]:

“In respect of the evidence generally in this trial from the two complainant witnesses upon whom the prosecution case rests, you will need to scrutinise the evidence of each complainant with great care before you could arrive at a conclusion of guilt on each offence. This is because of the following, in my view: firstly, the ages of the complainant children when these offences are alleged to have occurred. On the birth certificates, Exhibits 11 and 12, S was born on the 26th of January 1999. Therefore, at the time of the alleged offending he was between almost five and seven years and five months. That was his age. That is, he was a very young boy with all the imponderables that are inherent in a young person of that age. D was born on 25 April 2001. That is, she was over two years younger than S and during the period of alleged offending in count 1 was between two years and six years. Again a very young little girl.

Secondly, the reason you should scrutinise the evidence very carefully is because of the various inconsistencies in their evidence highlighted by defence counsel in the answers they respectively gave in cross-examination at the pre-recordings when compared with their original statements of complaint to the investigating police officer. Therefore, you should only act on their evidence in respect of each offence if, after considering it with that warning in mind that I’ve just given you, and all the other evidence in the trial, you are convinced of its truth and accuracy; that is of the complaints of sexual abuse that are before you.”

[15] The appellant argued that this warning to the jury should have highlighted the inconsistencies to which defence counsel referred and also the following additional matters:

(a) S’s and D’s inability to independently recall the alleged events in the pre-recorded evidence some eleven months after the s 93A statements undermined their reliability.

(b) The effect of the delay between the s 93A statements and their evidence on each child’s reliability, given their young ages.

(c) The effect of the delay in depriving the appellant of the opportunity to explore inconsistencies in the evidence.

(d) Experience has shown that recollection of events occurring in childhood is often erroneous and liable to distortion over time.

(e) Dangers about reliance on the testimony where the evidence of C and the complainant’s mother might lead to an inference that M encouraged or procured the children to make false allegations against the appellant.

[16]  Partly in reliance upon the High Court’s decision in Longman v The Queen,[2] the appellant argued that the warning to the jury not to act on the complainants’ evidence unless  convinced of its truth and accuracy should have been linked to the delay in making a complaint, the young ages of the complainants, the effect of time on the way they gave their evidence, and the lost opportunity for the appellant to investigate evidence that might be given by other people who periodically attended at the house where the alleged offences were committed. The appellant argued that the trial judge’s failure to give such a warning undermined the appellant’s forensic advantage in having evidence concerning the previous trial and the allegations involving A before the jury.  The respondent argued that the trial judge was not obliged to itemise the inconsistencies in the evidence and that the directions, considered in the context of the summing up as a whole, did not disadvantage the appellant.

[17]  Reference to other directions given by the trial judge demonstrates that the appellant did not lose the forensic advantage of the admission of evidence of his acquittal on the charge concerning A.  The trial judge gave the following specific directions on that topic:

“Now, that deals essentially with the elements of the offence. If you have any issues please let me know. Now, the following direction I’m going to give you is a very important one and I want you to listen to it very carefully. You have heard from the complainants in this trial of alleged unlawful sexual activity involving the complainants’ younger sibling [A]. The activity was referred to, you might recall, in the evidence of [S] when he said in his statement of complaint that the defendant was touching [D’s] vagina in [A’s] presence and also touching [A’s] vagina by rubbing it.

You might have wondered, well, why isn’t the defendant also facing a criminal charge in respect of [A]? For example, indecently dealing, or if not it is somewhat prejudicial to lead such evidence in this trial where it is strictly inadmissible. Now, the position is this: the defendant has been tried on a previous occasion before another jury on the same facts as you have heard for the offence of indecently dealing in respect of [A]. That is on [S’s] evidence of what he says the defendant did to [A]. But in that instance he was found not guilty and acquitted of that offence.

I therefore direct you as a matter of law that the evidence you have heard in the complainant child’s statement relevant to that charge against the defendant, which was before another Court on a previous occasion and of which he was acquitted, cannot be used by you for the purpose of challenging or diminishing the benefit to the accused of such acquittal. That is you cannot conclude, ‘Well, I think the jury in that trial was wrong in coming to that conclusion by acquitting the defendant.’ You must not conclude that at all. You cannot go behind that verdict or disagree with it or conclude they were wrong. That offence has been determined and finalised in the defendant’s favour and you must accept that unreservedly but, and this is the important part as well, you can take into account the fact that that evidence from [S] in that previous trial was rejected by that jury in that they were obviously not satisfied to accept it beyond a reasonable doubt and who therefore acquitted the defendant on the charge in question.

So, you can take what happened there into account on the charge in question when you are assessing the complainant’s credibility and reliability of his evidence with respect to the charges that the defendant is presently facing in this Court. The defence case here is that nothing of the sort as described happened. That was also the defence case in the previous trial concerning [A] where the only evidence against the defendant was that of [S]. That was not accepted by that jury, so you are entitled to take that fact into account when you are assessing his evidence in this trial in relation to the two charges which the defendant faces in this Court. I hope I have made myself clear on that.”

Those directions, read also in the context of the trial judge’s other directions quoted in these reasons, ensured that the appellant retained the forensic advantage of his acquittals in the earlier trial.

[18]  In the warning quoted in [14] of these reasons, the trial judge appropriately directed the jury to have regard to the inconsistencies upon which defence counsel relied.  Furthermore, in the course of the summing up, which occupied over two hours on the sixth day of the trial, the trial judge repeatedly emphasised the inconsistencies upon which defence counsel relied in the following passages:

“The next topic I want to discuss with you is the topic of inconsistencies. You have heard defence counsel, Mr Taylor, address you on that at some length. It is important when you are considering and assessing the evidence that you decide whether there have been any inconsistencies in the evidence of any particular witness or witnesses. You bear in mind, though, that there will almost inevitably be some inconsistencies in the evidence of various witnesses who have been called to give evidence and it would probably be a most exceptional case if that were not so.

…

Obviously one of the matters that you have to think about in terms of assessing a witness’s credibility or reliability is whether there have been any inconsistencies in their versions of what they say occurred, and again it comes back to that fundamental question of commonsense. If the evidence that you have heard from a witness is inconsistent or inconsistent versions have been told, that may raise a doubt in your mind as to whether the version sworn to by the witness in the witness-box, or in any other acceptable manner, is credible. It’s a matter of commonsense.

If a person tells you at one time that a certain version of events occurred and a different version at another time then you may wonder about that. You may wonder whether you are being told the truth. ‘Is it accurate?’ ‘Can I rely upon it?’ If two persons give vastly different accounts as to what they saw or heard of the same subject matter under consideration, that may also raise a doubt in your mind as to who is telling the truth and whether that event even occurred or, if so, what in fact are the real circumstances? So, therefore, you weigh up the evidence and you reach your own conclusions. 

What is important, however, to consider and to decide is whether they are significant inconsistencies which go to the essence of their credibility or whether they are slight inconsistencies which you are entitled to overlook as not affecting a person’s credibility but are more the foibles of human nature. Different people may see things differently or be mistaken, as I’ve given you an example before. Memories fade over the passage of time. So there again you bring your own experiences of human nature to bear when you are considering and weighing up the pros and the cons. It is for you to decide whether they are major inconsistencies or minor inconsistencies, whether they strike at the core of what has to be established to satisfy you beyond reasonable doubt of the elements of the offence and that the accused has therefore committed the offence or offences in question, and whether you are satisfied of that beyond a reasonable doubt. So you decide on the evidence you have heard on what you consider credible and reliable.

…

Obviously you take into account also any inconsistency between the preliminary complaint or complaints made before the official complaint. I repeat to you, the evidence of what was said on those occasions may, depending on the view that you take, bolster a complainant’s credibility because of consistency, but it does not independently prove anything. Likewise, any inconsistency between those accounts which were given to the cousin and the complainant’s evidence before you may cause you to have doubts about the complainant’s credibility or reliability.

So, whether consistencies or inconsistencies impact upon the reliability of a complainant is a matter for you to determine. As I said before, inconsistencies of describing events are relevant to whether or not evidence about them is truthful and reliable and any inconsistencies are matters for you to consider in the course of your deliberations, but the mere existence of inconsistencies does not necessarily mean that you must reject the evidence. What you make of the evidence is entirely a matter for you.

…

[The trial judge gave the directions quoted in [14] and [17] of these reasons].

…

[Defence counsel] reminded you that children develop at various stages of their life and you will have seen evidence of that from the video evidence that you saw in this trial, how they had developed over that passage of time which was a relatively short time. [Defence counsel] suggested to you that experience has shown that young minds can be mistaken and can fantasise, so therefore you must look carefully at their evidence and that these children, he suggested to you, were under the influence of older people.

The defence case is, effectively, that the witness [M] has told these children to make a complaint. That’s what the defence says has occurred here. You have only a limited view of the family dynamics. You will recall the evidence of [D], what she said in her evidence. You must bear in mind the possibility of suggestions or persuasion to young children. You’ll recall he reminded you of the doctors’ evidence of there being pitfalls in interviewing children where their reliability may be affected and that the first allegation that was made here was allegedly made to the witness [M] when she had the children at the park and that [M] told [D] to make a complaint, that [M] was cross-examined on the sequence of when these matters arose, whether it be at the park, at the shops, in the backyard. There were differences in her evidence and one of the ways of telling whether a person is telling the truth is whether the story changes.

[Defence counsel] suggested to you that [M] is contradicted by [D]. You’ve got to consider carefully what [D] says and that there would be no reason why she wouldn’t complain to her mother if the allegations were true. He mentioned to you that [D] used the word ‘genie’ but that wasn’t a word she appeared to use herself.

You’d also be satisfied that the children had been exposed to pornographic material from what you heard. He then reminded you of the inconsistencies in the two - in the evidence of the two children. He reminded you about a number of aspects of their evidence and how they were inconsistent. He reminded you of the medical evidence of the state of her hymen and that generally you bring your own experiences to bear on all of these matters.

He asked you to consider the contradictions between the versions of the children. When it came to the evidence of the defendant, he gave sworn evidence, which he was not obliged to do, where he denied that any of these things occurred, that there was a real opportunity that [D] had been inappropriately exposed to this pornographic material when they were - this pornographic material, that they were experimenting with each other - that is the two siblings. The allegations just don’t fit with the general nature of the environment.  He suggested that in all the circumstances the evidence was most unsatisfactory and that you would find him not guilty.

…

By way of final summary, therefore, I merely remind you of this: the defence case is that you could not be satisfied beyond a reasonable doubt that the defendant has committed the offences with which he is charged taking into account the many inconsistencies in the complainants’ respective evidence highlighted by the cross-examination in their prerecorded evidence when that is compared with the allegations made in the initial 93A statements.

The defence case is that the defendant did not do what is alleged against him, [M] put the children up to it and when the allegations were revealed to the children’s mother [M] said she was only joking. Ultimately, the defence says, you could not fail to have a reasonable doubt on the state of the evidence before you and that you would therefore find the defendant not guilty of each offence.”

[19]  There is no reason to think that the jury omitted to take into account those inconsistencies to which the trial judge adverted after defence counsel had relied upon them in his address to the jury.

[20]  As to the additional matters in [15] of these reasons which were not addressed by defence counsel, it must be borne in mind that it was not submitted that defence counsel’s forensic decisions about the matters to be emphasised in his address themselves evidenced any miscarriage of justice.  It is also necessary to bear in mind that the trial judge’s warning required the jury to decide whether it was convinced of the truth and accuracy of the complainants’ evidence after considering their evidence together with “all the other evidence in the trial”.  That tended to be overlooked in some of the appellant’s arguments that the warning was inadequate because it did not expressly advert to particular parts of the evidence.

[21]  In relation to the additional matters identified in [15](a), (b) and (d) of these reasons, the trial judge’s warning expressly encompassed the “imponderables” inherent in the complainants’ very young ages as well as the inconsistencies between their answers in cross-examination and their statements to the investigating police officer.  Furthermore, the trial judge’s warning was given after the directions quoted in [18] of these reasons that it was important for the jury to consider “whether there have been any inconsistencies in the evidence of any particular witness or witnesses.”  After giving the warning, the trial judge went on to emphasise defence counsel’s submissions about the inconsistencies between the evidence of the complainants.  Again, in the redirections quoted in [29] of these reasons, the trial judge reminded the jury that in some instances witnesses contradicted each other and directed the jury to take those inconsistencies into account.

[22]  As to the additional matter mentioned in [15](e) of these reasons, the trial judge reminded the jury of defence counsel’s submission that the complainants were “under the influence of older people” and that M “has told these children to make a complaint.”  The trial judge then directed the jury that it “must bear in mind the possibility of suggestions or persuasion to young children.” 

[23]  As to the additional matter mentioned in [15](c) of these reasons, the appellant referred to the delay between the starting points of the charge periods, the time when the s 93A statements were given, and the time when the pre-recorded evidence was taken.  The delay was, as the appellant accepted, much more significant for D than it was for S.  In D’s case, she was two years of age at the commencement of the charge period in May 2003 (and a week short of six at the end of the charge period in April 2007), five and six when she gave her s 93A statements in 2007, and six and seven when she gave her pre-recorded evidence in 2008.  The delay between the time when the offence was alleged to have commenced and the time, some four years later, when the s 93A statement was taken, together with a further delay until the pre-recorded evidence was taken in November 2008, was said to be particularly significant in the context of a child of such a young age.  It was submitted that the delay had the effect that the complainants appeared frequently not to have an independent recollection of the offences by the time they gave their pre-recorded evidence, thereby affecting the ability to test the s 93A statements.

[24]  The appellant also argued that a significant aspect of the delay was that the medical evidence suggested that, particularly in relation to S, an earlier medical examination might have proved that the children had not been subjected to the most serious examples of the alleged sexual misconduct.  However, that was disclaimed as a basis for the warning which defence counsel asked the trial judge to give; defence counsel submitted that “it’s not one of those cases whereby the mere effluxion of time one can see that evidence may have been lost.”  Defence counsel instead submitted that what had been lost was the opportunity to investigate whether evidence of the people and activities in the house at the time might have provided useful defence evidence.

[25]  The trial judge specifically directed the jury’s attention to the dates of birth and ages of the children during the period of the alleged offending and referred to the inconsistencies between their evidence and their original statements which were highlighted by defence counsel.  Ideally, the trial judge’s directions might have referred to the potential effect of the delay upon the opportunity to investigate the alleged offences, but in the context of the summing up as a whole the appellant was not materially prejudiced by that omission.  Importantly, the trial judge warned the jury of the need to scrutinise the evidence of each complainant with great care and only act on it if convinced of its truth and accuracy.

[26] There is no reason to think that the jury did not heed that clear warning.  In my opinion no miscarriage of justice was produced by the trial judge’s failure specifically to refer to all of the matters relied upon by the appellant.

Ground two: failure in the direction to the jury concerning corroborative evidence to identify to the jury apparent inconsistencies in the evidence and the proper use the jury could make of the “corroborative” evidence for each individual count

[27]  Under the second ground of appeal, the appellant argued that a miscarriage of justice occurred because the trial judge, when directing the jury on corroborative evidence, failed to identify apparent inconsistencies in the evidence and the proper use the jury could make of the corroborative evidence for each individual count.  The appellant submitted that if the direction on corroboration should have been given at all, the trial judge should have: accompanied the direction with a warning as to the inconsistencies in the evidence and a reminder of the potential unreliability of the evidence of children; “[m]ade it clear to the jury that they must first accept the evidence of the child who made the corroborating statement as reliable and true before considering the issue of corroboration”; and “[t]old the jury that if they found the evidence of one complainant supported the case for the other complainant, that finding did not bolster their own complaint against the Appellant.” 

[28]  A warning that the evidence of children could be unreliable because they were children would offend s 632(3) of the Criminal Code 1899 (Qld) (“the Code”), which provides that a judge “… must not warn or suggest in any way to the jury that the law regards any class of persons as unreliable witnesses.”  However it was appropriate for the trial judge to direct the jury that they must first accept as reliable and true the evidence of the child who made the statement which was said to be corroborative of the other child’s evidence.  The trial judge did give such a direction to the jury in the course of the following directions about corroboration:

“The next topic that I want to direct you on is this question of corroboration. Frequently - and corroboration means tending to support or confirm. A big word, I know, but that’s what it means. Frequently in criminal trials one of the criteria for which juries might look to assist them in their deliberations is whether there is any support or confirmation of the complaint or complaints made which constitute the charge or charges before the Court. Now, that again is a matter of commonsense. It permeates our criminal justice system. It is not an ingredient - an essential ingredient for these offences that a complainant’s testimony be corroborated before a jury may be - before a defendant may be convicted by the jury; that is, before you may be satisfied beyond a reasonable doubt of the defendant’s guilt.

But frequently in criminal trials, as in our everyday life, we look to whether there is any supporting evidence to define a particular issue or determine whether a particular event occurred. Here in this trial there is some evidence from respective witnesses which is capable of corroborating the evidence of the other provided [that] you accepted that evidence beyond a reasonable doubt. For example, [S] gives evidence of seeing the defendant touching [D’s] vagina of which she also complains. So, to that extent if you were satisfied beyond reasonable doubt that [S] was telling the truth, then that corroborates or supports [D’s] evidence on point. But these issues are matters for you to accept or reject as you are the only judges of the facts.

Another example would be where [D] describes the defendant putting his penis into [S’s] anus in front of her at the house with the blue roof. [S] also describes that happening to him while the sisters were present. In that example [D’s] evidence, therefore, corroborates [S’s] evidence of that unlawful sexual act. They are examples of corroboration, but you must accept that evidence beyond reasonable doubt before it can be accepted as corroborative evidence.” (emphasis added)

[29]  Furthermore, the trial judge specifically referred the jury to the inconsistencies which defence counsel emphasised in the course of giving re-directions about corroboration:

“Now, that was the evidence of those two witnesses. As I said, the evidence of preliminary complaint is only used to test the credibility of the witness. That was the evidence that was given by those two witnesses so far as what [M] had said she was told. As I said before, you have to be satisfied beyond reasonable doubt so far as these allegations are concerned.

Now, on the question about corroboration, I gave you those two examples where the evidence is capable of corroborating each other from those witnesses. Of course, there were other instances, as you will remember, where the witnesses contradicted each other. So you take everything into account in the overall assessment of the evidence that you have heard; all right? Inconsistencies and other parts of the evidence are also factors that you take into account when you are considering whether the evidence in one respect is capable - from one witness is capable of corroborating the other. So you’ve got to put everything into the mix. Right?”  (emphasis added)

[30]  The appellant submitted that the directions might more comprehensively have referred to inconsistencies within and between the evidence of the witnesses, but the trial judge clearly explained that evidence could only be regarded as corroborative if the jury was satisfied beyond reasonable doubt that the evidence was itself true.  The examples given by the trial judge were sufficient to make the point.  The trial judge was not required to itemise all of the inconsistencies.  The appellant’s submission referred also to the absence of a reference in the direction to the reliability of evidence which might be corroborative, but that was comprehended by the trial judge’s direction that the jury “must accept that evidence beyond reasonable doubt before it can be accepted as corroborative evidence”.

Ground three:  the jury were not directed of the requirement to be satisfied of the same sexual acts constituting each maintaining charge before being lawfully entitled to return a unanimous guilty verdict.  The failure to do so, and the effect of s 229B of the Code, offend ch III of the Commonwealth Constitution

[31] Under the third ground of appeal, the appellant invoked the limitation upon State legislative power which was established by the High Court’s majority decision in Kable v Director of Public Prosecutions (NSW).[3]

[32] Section 229B of the Code creates the offence of maintaining an unlawful sexual relationship with a child.  In KBT v The Queen[4] the High Court held that the actus reus (guilty act) of the offence created by s 229B prior to its amendment in 1997 was, as specified in s 229B(1A), the commission of three acts constituting certain offences of a sexual nature, so that a person could not be convicted of the offence unless the jury was agreed as to the commission of the same three or more illegal acts.  The present s 229B, which was substituted by s 18 of the Sexual Offences (Protection of Children) Amendment Act 2003 with effect from 1 May 2003, differs in significant respects from the provision considered in KBT.  Section 229B now provides:

“(1)Any adult who maintains an unlawful sexual relationship with a child under the prescribed age commits a crime.

Maximum penalty—life imprisonment.

(2)An unlawful sexual relationship is a relationship that involves more than 1 unlawful sexual act over any period.

(3)For an adult to be convicted of the offence of maintaining an unlawful sexual relationship with a child, all the members of the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship with the child involving unlawful sexual acts existed.

(4)However, in relation to the unlawful sexual acts involved in an unlawful sexual relationship—

(a) the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and

(b) the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence; and

(c)all the members of the jury are not required to be satisfied about the same unlawful sexual acts.”

[33]  The effects of the section which form the essential bases of the appellant’s argument under this ground of appeal are that: it relieves the prosecution of the obligation of alleging the particulars of any unlawful sexual act that would be necessary if it were charged as a separate offence; it provides that the jury is not required to be satisfied of such particulars; and it dispenses with the requirement that all members of the jury be satisfied about the same unlawful sexual acts.

Summary of the arguments

[34]  The appellant argued that s 229B(4) offends ch III of the Commonwealth Constitution (“the Constitution”) because: the jury can effectively return a non-unanimous verdict contrary to the requirements for a trial by jury and a unanimous verdict under s 80 of the Constitution (the appellant referred to Cheatle v The Queen[5] and Ngv The Queen[6]); a unanimous verdict by a jury satisfied of the material facts beyond reasonable doubt on each element of the offence is an essential feature of a jury trial; and a District Court judge, as a repository of the power of the federal judicature, cannot ensure an accused’s right to a fair trial where the practical effect of s 229B(4) means that there are no adequate protections or safeguards to protect the rights of the accused.  Section 229B was submitted to offend the “Kable principle” because it required the District Court to “act in a manner which is incompatible with Chapter III of the Commonwealth Constitution” and because there were no safeguards to protect the rights of defendants such as were present in the legislation considered in Fardon v Attorney-General (Qld)[7] and K-Generation Pty Ltd v Liquor Licensing Court.[8]  The necessity for a unanimous verdict in trials of State offences, which was qualified only by a provision allowing substantial majority verdicts in a narrow range of cases and subject to legislative safeguards,[9] was eroded because the practical effect of s 229B(4) was to enable the jury to return a non-unanimous verdict “on an element of the offence”, namely the alleged unlawful sexual acts of the defendant. 

[35]  The appellant also submitted that those unlawful sexual acts were analogous to “intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt”[10] which the prosecution was obliged to prove beyond reasonable doubt.  The appellant emphasised the removal in the current form of s 229B of the requirement for the unlawful sexual acts to be properly particularised, and the absence of safeguards, such as a provision for the use that the jury might make of generalised sexual conduct or for the taking of a special verdict as to the alleged unlawful sexual acts.[11]  The Crown was now excused from proving beyond reasonable doubt “each element of the offence of maintaining” and the trial judge was prevented from ensuring a fair trial.  The appellant argued that Kirk v Industrial Court (NSW)[12] supported the proposition that the Kable principle was infringed.

[36]  The respondent argued that the Kable principle was infringed only where the conferral by State legislation upon a State court of a particular power or a particular function was repugnant to one or more of the defining characteristics of a court, and thereby compromised that court’s capacity to exercise federal judicial power.  That was not the effect of s 229B(4), because s 229B(3) required that the jury be unanimously satisfied beyond reasonable doubt of the central element that the respondent maintained an unlawful sexual relationship with the child involving unlawful sexual acts.  The absence of any requirement that the jury be unanimously satisfied about the same unlawful sexual acts (s 229B(4)(c)), and the absence of a requirement that the jury be satisfied of the particulars of any unlawful sexual act which would have required satisfaction if that act were charged as a separate offence (s 229B(4)(b)), were unremarkable.  It was not unorthodox to admit evidence of previous sexual acts for a variety of purposes, despite the absence of full particularity and although the evidence is of a general kind.  The exemption afforded by s 229B(4)(a) is confined to an exemption from providing the same particulars which would be necessary if the act were charged as a separate offence. 

[37]  The respondent argued that trial judges retain the power to direct the prosecution to furnish particulars identifying the nature of the alleged unlawful sexual acts relied upon to prove the existence of an unlawful sexual relationship, and they retain the discretion to exclude evidence of unlawful sexual acts where its prejudicial effect exceeds its probative value.  Section 229B does not authorise a trial in which the absence of particularity results in an accused person being unable to answer the charges.  A conviction after such a trial would be overturned on the ground that the trial was unfair.  The statutory policy identified in the explanatory notes and reflected in the text of s 229B responded to the nature of offences which might take place over a prolonged period of time while the victim is of tender years, creating difficulties in particularising individual offences. 

Consideration

[38]  The appellant did not argue that s 229B was outside the legislative power of the State to make laws for “the peace welfare and good government” of Queensland.[13] Rather, the appellant argued that there was a limitation upon the legislative power derived from ch III of the Constitution.  The basis and content of the relevant principle were explained by Gummow, Hayne and Crennan JJ in Forge v Australian Securities and Investments Commission:[14]

“Because Ch III requires that there be a body fitting the description ‘the Supreme Court of a State’, it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description. One operation of that limitation on State legislative power was identified in Kable. The legislation under consideration in Kable was found to be repugnant to, or incompatible with, ‘that institutional integrity of the State courts which bespeaks their constitutionally mandated position in the Australian legal system’. The legislation in Kable was held to be repugnant to, or incompatible with, the institutional integrity of the Supreme Court of New South Wales because of the nature of the task the relevant legislation required the Court to perform. At the risk of undue abbreviation, and consequent inaccuracy, the task given to the Supreme Court was identified as a task where the Court acted as an instrument of the Executive. The consequence was that the Court, if required to perform the task, would not be an appropriate recipient of invested federal jurisdiction. But as is recognised in Kable, Fardon v Attorney-General (Qld) and North Australian Aboriginal Legal Aid Service Inc v Bradley, the relevant principle is one which hinges upon maintenance of the defining characteristics of a ‘court’, or in cases concerning a Supreme Court, the defining characteristics of a State Supreme Court. It is to those characteristics that the reference to ‘institutional integrity’ alludes. That is, if the institutional integrity of a court is distorted, it is because the body no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision-making bodies.” (citations omitted)

[39] State legislation will be invalid on that basis if it deprives a court in which federal jurisdiction is vested of those “minimum characteristics” of institutional independence and impartiality identified in decisions of the High Court.[15]  There is no decision of the High Court which decides that legislation which diminishes the common law requirement for particulars of an offence is invalid, but there are considered statements of justices of the High Court which bear upon that issue.  In Kirk v Industrial Court (NSW) the plurality applied the decision in Forge that it is beyond the legislative power of a State to alter the constitution or character of a “court” to the extent that it ceases to meet that constitutional description, in holding that State legislation which purported to remove a State Supreme Court’s power to grant relief for jurisdictional error by inferior courts was beyond power “because it purports to remove a defining characteristic of the Supreme Court of the State.”[16] That is not directly relevant here, but the plurality also discussed a defendant’s common law entitlement to particulars of the factual bases of a charge:[17] 

“In John L Pty Ltd v Attorney-General (NSW), it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offences, ‘must at the least condescend to identifying the essential factual ingredients of the actual offence’. These facts need not be as extensive as those which a defendant might obtain on an application for particulars. In Johnson v Miller, Dixon J considered that an information must specify ‘the time, place and manner of the defendant’s acts or omissions’. McTiernan J referred to the requirements of ‘fair information and reasonable particularity as to the nature of the offence charged’.” (citations omitted)

[40]  The plurality held that the absence of necessary particulars would result in the Industrial Court being placed in the position described by Evatt J in Johnson v Miller[18] “where it would act as ‘an administrative commission of inquiry’ rather than undertake a judicial function”.[19]  Whether or not State legislation which dispensed with the prosecution’s requirement to provide particulars would fall outside State legislative power was not in issue in Kirk because the New South Wales legislation under consideration did not have that effect,[20] but this aspect of Kirk is nevertheless significant for present purposes.  The common law rule which requires the prosecution to particularise alleged offences fulfils one of the requirements of natural justice or, as it is now more commonly called, procedural fairness.[21]  In Commissioner of Police v Tanos,[22] Dixon CJ and Webb J observed that the application of the rules of natural justice “in the established courts is a matter of course.”  It is therefore not difficult to accept that the application of the rules of procedural fairness is one of the defining characteristics of a court in which federal jurisdiction is vested.

[41]  Other authorities to that effect are discussed by Williams JA in the course of his Honour’s extensive analysis in Re Criminal Proceeds Confiscation Act 2002.[23] Furthermore, in Wainohu v New South Wales,[24] French CJ and Kiefel J stated in terms that the application of procedural fairness was one of the “defining characteristics” of a court:

“Decisions of this Court, commencing with Kable, establish the principle that a State legislature cannot confer upon a State court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role, under Ch III of the Constitution, as a repository of federal jurisdiction and as a part of the integrated Australian court system. The term ‘institutional integrity’, applied to a court, refers to its possession of the defining or essential characteristics of a court. Those characteristics include the reality and appearance of the court’s independence and its impartiality. Other defining characteristics are the application of procedural fairness and adherence, as a general rule, to the open court principle. As explained later, it is also a defining characteristic of a court that it generally gives reasons for its decisions. In the case of the Supreme Courts of the States, that characteristic has a constitutional dimension by reason of the appellate jurisdiction conferred on this court by s 73 of the Constitution.” (citations omitted)

[42]  For these reasons I would accept that State legislation which denied to a State court in which federal jurisdiction was vested the power to order the prosecution to supply to the defendant particulars of an offence charged against State legislation which were necessary to fulfil the requirements of procedural fairness of a trial in that court would be constitutionally invalid.  Such legislation would require the court to conduct a trial which was “repugnant to the judicial process in a fundamental degree.”[25]  It would so distort the “institutional integrity” of the court that it “no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision-making bodies.”[26] 

[43]  The appellant did not argue that State legislation which regulated a court’s power to direct the prosecution to provide particulars of an alleged offence was necessarily invalid.  Rather, the appellant’s argument in this respect was that invalidity flowed from the extent to which defendants were deprived of the right to particulars together with the absence of compensating safeguards.  It is arguable that s 229B does depart to some extent from the common law requirement for particulars, but it does not on that account necessarily infringe the relevant principle derived from ch III of the Constitution.[27]  It is not practicable to offer any precise definition of “procedural fairness”.  Its content may vary according to the nature of the proceeding[28] and with changing social standards and circumstances.[29]  Thus the rules of procedural fairness are sufficiently flexible to accommodate different degrees of particularisation being required in different circumstances.  Again, it is not practicable to attempt to define the extent of the permissible relaxation of the rules of procedural fairness, and reference to the established entitlement of all persons to a “fair trial”[30] does not provide any more precise definition.

[44]  The particular circumstances which informed the legislative purpose underlying s 229B were made clear in the explanatory notes to the 2003 amending Act:[31]

“In KBT v R (1997) 72 ALJR 116 the High Court held that the actus reus of the offence in section 229B is the doing of an act which would be an offence of a sexual nature on three or more occasions, rather than the maintaining of a relationship.  The jury must be agreed as to the commission of the same three or more acts.  This by necessity requires three or more distinct occasions to be identified, despite the intention behind the provision that dates and exact circumstances need not be established.

The Queensland Court of Appeal criticised the interpretation of the section in this way and said in R v S [1999] 2 Qd R 89, at 94 –

If s 229B(1) is to perform its function in most future prosecutions of this kind, legislative attention is needed to ensure that … s 229B(2) operates only as an evidentiary aid or exclusion and is not expressed in a form capable of being regarded as serving to define the offence or its actus reus under s 229B(1).

Where the accused has engaged in persistent sexual abuse of a child, the child may be left with no means of identifying any particular occasion with a sufficient degree of particularity to enable a single charge to be laid, or to identify the three acts required to demonstrate the relationship.  Even if the accused admits to the behaviour, there is no offence that can be charged.

The offence as redrafted removes the requirement to prove three acts of a sexual nature, and instead the offence is established by proof of the relationship (that is, a course of conduct).  This reflects the original intent of the provision, and is similar to the other course of conduct offences, such as trafficking in a dangerous drug.”

[45]  The legislative assumption is that children who are the victims of the particular offence created by s 229B might often be unable to recall sufficient details of the specific offences committed in the course of the relationship to enable the prosecution to supply those particulars that might be required in charges of specific sexual offences.  That reflects the experience of the courts that many children give convincing evidence that they have been victims of regular sexual offending by an adult even though they are unable clearly to distinguish the details of one particular act of sexual misconduct from many other such acts committed in the course of the sexual relationship maintained by the adult.  Of course it remains necessary for juries to assess the veracity and reliability of the child’s evidence in each case, but there is no ground for holding that the legislative assumption which underlies s 229B is not justifiable.  The appellant did not argue that there was.  That underlying premise of the legislation therefore justifies some flexibility in the application of the common law requirement for particulars.  Otherwise, the procedure might reasonably be perceived as skewed against child complainants to such an extent as ultimately might shake public confidence in the court’s ability to do justice in such cases.  Equally, however, any adaptation of the traditional requirements of procedural fairness must not go so far as to preclude the ability of the courts to ensure a fair trial for the defendant.  In my opinion the section does not have that effect, even though it plainly does make the prosecution’s task easier than otherwise would be the case.

[46]  In reaching that conclusion I have taken into account that an offence against s 229B is not established merely by proof of more than one unlawful sexual act.  The prosecution must also prove that the defendant maintained a “sexual relationship” with the child.  The Court has consistently held, and trial judges have regularly directed juries, that s 229B in its previous forms required proof beyond reasonable doubt of sufficient continuity or habituality to justify the inference that the defendant maintained a sexual relationship with the child.[32]  In this case, for example, the trial judge gave the conventional direction to the jury that the prosecution was required to prove “an ongoing relationship of a sexual nature between the defendant and the complainant” and that there “must be some continuity or habituality of sexual conduct, not just isolated incidents.”  There is no indication in the explanatory notes or in the text of the current section that this requirement has been discarded.  To the contrary, s 229B(3) seems consistent only with the conclusion that it is a requirement.

[47]  The prosecution may therefore be directed to provide particulars of the alleged relationship, including as to the nature of any unlawful sexual acts from which the prosecution infers the alleged relationship.  The exemption from giving particulars is limited to a dispensation from giving the particulars of each unlawful sexual act “that would be necessary if the act were charged as a separate offence”.  Subject only to that qualification, the District Court remains empowered by s 573 of the Code, to “direct particulars to be delivered to the accused person of any matter alleged in the indictment” and to “adjourn the trial for the purpose of such delivery.”

[48]  Those particulars should inform a defendant of the essential allegations of fact made by the prosecution in sufficient detail to enable the defendant to understand and to meet the charge.  An example is provided by the particulars supplied by the prosecution in this case, which were attached to the appellant’s outline of submissions.  It is sufficient in that respect to refer to the particulars of the count involving D.  The particulars of that count appear in Annexure A to this judgment.

[49]  The appellant criticised those particulars as being so extensive and detailed as to obscure rather than to identify the alleged facts, but the particulars conveyed the “time, place and manner of the defendant’s acts”[33] with sufficient clarity to enable the defendant to understand the essential factual bases of the charge and to prepare his defence.

[50] Where the particulars are limited, that may be taken into account by the trial judge in exercising the discretion to ensure a fair trial by, for example, excluding evidence of previously unidentified sexual acts on the ground that the prejudicial value of the evidence exceeds its probative value.  In R v WAB[34] Keane JA, with whose reasons I and Lyons J agreed, observed:

“It is also important to state that, while s 229B(4) is clearly intended to facilitate the conviction of offenders of a contravention of s 229B(1) even though the evidence against the accused is not sufficiently particularised to establish a charge of a separate sexual offence, that circumstance makes it all the more important to ensure that the accused has the benefit of the other procedures calculated to ensure a fair trial. In this regard, it is, of course, important that the accused should have every opportunity to meet the case made against him or her by the Crown.”

[51]  Accordingly, s 229B does not have the effect of authorising an administrative inquiry or a trial where the accused is given so little information about the charge as to render it impractical properly to prepare a defence.  It does not remove the trial judge’s powers to ensure a fair trial or the Court’s power to set aside a conviction on the ground that there was a miscarriage of justice.[35]

[52]  The appellant also sought support in s 80 of the Constitution.  In that respect the appellant’s argument reflected the generality of Williams JA’s statement in Re Criminal Proceeds Confiscation Act 2002[36] that the principle derived from the majority judgments in Kable was that “a State Supreme Court as one of the judicial institutions invested with federal jurisdiction may not act in a manner inconsistent with the requirements of Ch. III of the Constitution.”  I do not construe that as conveying that State courts must act in all respects in the same way as federal courts must act.  That is not the case.[37]  The High Court decisions cited by the appellant[38] concerned the effect of s 80 as conferring a “constitutionally entrenched status”[39] upon the essential features of the institution of trial by jury at common law at the time of federation, but the expressed limitation that s 80 applies only to trials of offences “against any law of the Commonwealth” precludes any implication that the Constitution requires a jury in trials in State courts of offences against State law.

[53]  In any event, s 229B does not purport to dispense with trial by jury.  Indeed, s 229B expressly contemplates trial by jury and requires jury unanimity upon the essential allegation that the defendant maintained a sexual relationship with a child that involved more than one unlawful sexual act.  The appellant argued that a direction to the jury (in conformity with s 229B(3)) that all jurors must be satisfied beyond reasonable doubt of one or more unlawful sexual acts, but (in conformity with s 229B(4)(c)) not necessarily of the same acts, is inconsistent with the conventional directions that the prosecution must prove each element of the offence beyond reasonable doubt before it may convict and that the jury’s verdict in respect of each offence must be unanimous.  There is no such conflict.  The jurors could be unanimously satisfied that the defendant maintained an unlawful sexual relationship with the child involving more than one unlawful sexual act whilst at the same time disagreeing about which two or more of numerous alleged unlawful sexual acts were proved beyond reasonable doubt.

[54]  Because jurors might differ about which unlawful sexual acts are proved and which are not, a verdict that the defendant is guilty of an offence against s 229B may leave unresolved some matters that bear significantly upon the defendant’s culpability, such as the frequency and seriousness of the unlawful sexual acts involved in the unlawful sexual relationship.  In the result, trial judges may be required to make significant findings of fact in the sentencing process.  In this respect s 229B, like some other provisions (such as those which create the offence of trafficking in drugs) reduces the role of the jury in the fact finding process and to that extent erodes the safeguards traditionally associated with trial by jury of more specific offences,[40] but that is not an unconventional feature of trial by jury.[41]  These results are necessary corollaries of the qualified dispensation from alleging particulars given by s 229B(4)(a) and are justifiable by the considerations I have already discussed.

[55]  In my opinion, s 229B does not work such a serious diminution upon the necessary extent of particularisation of the offence, the usual requirement for jury unanimity (or majority verdicts in certain cases), or other procedures designed to ensure a fair trial, as to justify the conclusion that the trial court no longer exhibits any of the defining characteristics which mark it apart from other decision-making bodies.  I would hold that s 229B of the Code is not constitutionally invalid on any of the grounds argued by the appellant.

Proposed orders

[56]  The appeal should be dismissed.

[57]  CHESTERMAN JA: I agree that the appeal should be dismissed for the reasons given by Fraser JA.

[58]  WHITE JA: I have read the reasons for judgment of Fraser JA and agree with his Honour for those reasons that the appeal should be dismissed.

ANNEXURE A

R v CAZ