SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  The appellant pleaded not guilty to six counts of indecent treatment with circumstances of aggravation (counts 1-4, and counts 6-7) and one count of rape (count 5).  The offences were alleged to have been committed between 1997 and 2002 upon his son who was then aged from eight to 14.  After a seven day trial, the jury found the appellant guilty of five counts of indecent treatment with circumstances of aggravation (counts 1, 2, 3, 6 and 7) but not guilty of one count of indecent treatment with circumstances of aggravation (count 4) and rape (count 5).  He has appealed against his convictions contending the acquittals on counts 4 and 5 are inconsistent with the guilty verdicts.  He also contends that the guilty verdicts are unreasonable and cannot be supported having regard to the evidence (s 668E(1) Criminal Code 1899 (Qld)).

The evidence at trial

[2] Before returning to discuss the grounds of appeal, it is necessary to fully review the evidence at trial: see M v The Queen.[1]

[3] The critical evidence in the prosecution case came from the complainant who was 23 years old at trial.  When he was nine years old he lived in a central Queensland rural town with his mother, the appellant, and the complainant's two younger sisters.  Counts 1 to 4 occurred when he lived in this town.  One day he was in a car with the family and he began to fight with his sisters.  When the family arrived home, the appellant pulled the complainant out of the car, threw him to the ground and kicked him in the chest, badly winding him.  The appellant sent him to his room and after a while came to him.  The appellant told the complainant that he had been bad and he would have to make it up.  He was scared.  The appellant took his penis out of the top of his pants and masturbated in front of the complainant.  The appellant told the complainant how to masturbate him.  The complainant had to take the appellant's penis in his hand and move it back and forth (count 1).  He then made the complainant put the appellant's penis in his mouth and suck it (count 2).  The appellant took his penis out of the complainant's mouth and had the complainant masturbate the penis vigorously by hand until ejaculation.  He remembered getting some ejaculate on his hands and pants and having a shower. 

[4] The next occasion of sexual abuse was after he had been playing with his male cousin and they set the backyard and wooden cubby house on fire with a homemade Molotov cocktail.  His mother was angry, sent him to his room and sent his cousin home.  The appellant came into his room and asked if he remembered what to do, signalling towards his crotch.  The complainant knew he was in trouble and said "yes".  The complainant was sitting on the end of his bed.  The appellant was standing over him.  The complainant had to take the appellant's penis out of the top of his pants and masturbate it with one hand, whilst holding the appellant's testicles with the other.  He did this until the appellant ejaculated.  The complainant had to wipe the ejaculate with tissues or something white (count 3). 

[5] The next occasion of sexual abuse which he recalled was after the complainant saw the appellant naked in the bathroom trimming his pubic hair.  The appellant then came into his room, showed him his penis and asked to see the complainant's genitals.  He poked at the complainant's testicles.  He "just explained … that they were testicles".  His hand brushed the skin on the complainant's penis, not in a grasping manner to masturbate.  He remembered the appellant "explaining to [the complainant], like vaguely, what they were".  The appellant left abruptly and went to work (count 4).  This incident occurred shortly before the complainant's mother separated from the appellant and the complainant moved with his mother and two sisters to bayside Brisbane.

[6] After some time the appellant moved back with the family in Brisbane.  The appellant at this time was training to become a police officer.  One day the complainant had a fight with one of his sisters, shoved a punching bag into her, knocked her over and made her cry.  The appellant grabbed him by the throat and lifted him off the ground before throwing him onto the ground.  He told him to go to his room and get ready for his karate lesson.  The complainant put on his karate outfit.  The appellant stormed into the room, grabbed him by his belt, pushed him into a corner, kicked him, and threw him onto the bed.  He tried to defend himself by rolling away across the bed.  The appellant hit him pretty hard to the ribs.  He was not wearing underpants and his karate outfit had become loose.  The appellant put his hand into the complainant's pants and grabbed his testicles and penis, causing him nauseous pain.  He felt one of the appellant's fingers being pushed inside his anus a little way.  It felt uncomfortable.  He felt the finger go in and out and then felt another finger inside his anus.  It was not just the tip as he could feel the finger bending.  He was lying on his stomach on the bed with his hands crossed over in front of his chest.  The appellant's knee was pushed in between his legs (count 5).  The appellant left the bedroom and the complainant ran out of the house to his grandmother's place more than a kilometre away.  His grandmother was not home and he had to break in.  He collapsed with exhaustion on the floor.  He remembered his mother coming to get him.  They went for a walk through a park and he tried to explain to her what had happened.

[7] The next occasion of sexual abuse which he recalled was after the appellant had thrown the complainant's mother against a dishwasher late in the evening.  He was scared and went to his room and his sisters hid in their rooms.  The appellant came into the complainant's room and spent the night with him in his single bed.  The appellant cuddled him and they talked about the disagreement with the complainant's mother.  The appellant asked the complainant to help make him feel better.  The complainant had to take the appellant's penis out of his pants and masturbate him.  The complainant also had his penis out and they masturbated each other.  Once the complainant ejaculated, the appellant did not require the complainant to continue to masturbate him.  The appellant said something like, "That's good.  That's great.  That's – it's okay now" (count 6).

[8] The last occasion of sexual abuse which the complainant specifically recalled occurred on a school day when he stayed home.  The appellant was also home.  He was upset about something to do with the complainant's mother, "cheating or something".  He was telling the complainant about it and they were both upset.  The appellant asked the complainant to make him feel better.  The complainant had to get down to the appellant's penis level and masturbate his penis in front of the complainant's face.  The appellant's penis was erect.  This continued until the appellant asked him to stop.  He left and returned with a small towel or face washer and made the complainant continue to masturbate him until ejaculation.  The towel was used to wipe the ejaculate from the appellant's penis and the complainant's hands.  They then spent the rest of the day together (count 7).  The appellant told the complainant that he was upset with his mother because she was disloyal and untrustworthy and he planned to move away.  The appellant moved to the Rockhampton area in mid-2002. 

[9] The complainant was cross-examined at length over two days about the seven alleged offences but he maintained that the appellant committed them, largely in the way he described in evidence in chief. 

[10]  Some months after the last incident, he went to live with his father in Rockhampton for a few months before returning to live with his mother in Brisbane. 

[11]  On 6 June 2008, he went to the police station and made a complaint about the appellant's sexual abuse, giving an eight page statement.  On 19 August 2008, he attended at the police station again and gave a longer statement.

[12]  In his statement to police on 6 June, he said:

"It was never sexual acts which were done to me.  It was the things that I had to do to him.  Sex acts would then occur depending on what he really felt like.  This involved whether he wanted to be touched, or fellated, and whether, in particular, he wanted me to masturbate him or to suck on his penis. …  At no time did my dad do sexual acts upon me. … It was always just me being required to do sexual acts to him. … I always felt like he was going to do sex acts to me, and that was the way things were going to go, but they didn't."

[13]  He agreed that this was inconsistent with his evidence in which he described the appellant on occasions doing sex acts to him (counts 4, 5 and 6).  When asked why he told the police the appellant did not do sex acts to him, he responded:

"I just didn't want to do this.  I just wanted to get out.  … I had a male investigator, it's difficult being a male and telling another male that, and feeling comfortable, so I tried to get out of ---- this, as easy as I thought I could."

[14] In his statement of 6 June, he told police the first episode of sexual abuse occurred when he was 11 years old.  That was obviously a mistake.

[15]  Defence counsel suggested that the reason there was a change between the first statement on 6 June and the subsequent statement on 19 August was because he was not telling the police the truth.  The complainant responded "I can see how you'd think that" and then added "I wanted to be more thorough when I made my second statement".

[16]  His mother had confided in him that she planned to leave the appellant and take the children with her.  He did not tell his sisters in case they told the appellant.  The family separated from the appellant for some months.  When he was cross-examined about count 4 and the appellant prodding his testicles and touching the skin of his penis, he said he could not remember exactly what the appellant said but he remembered him explaining what "they" were. 

[17]  The complainant began Japanese samurai martial arts classes because he was being beaten up at school and bullied.  When he was speaking to his mother after count 5 occurred, he tried to tell her what had happened but "she deflected it pretty easily … she made excuses for it … she instantly said that if [the complainant] wasn't so difficult or so bad [the appellant] wouldn't have acted that way."  The following exchange occurred:

"[DEFENCE COUNSEL]:  … So in other words, just to be clear, what I'm putting to you is that there was an occasion when you were supposed to go to karate and an altercation occurred between you and the [appellant], but it didn’t involve him doing anything to you in the bedroom that resulted in his fingers going into your anus, but it did result in you ending up at your nan's place? --- I don't agree with you.

Okay?-- I think – don't think that's-----

Well, what you say is that the version you've given [the prosecutor] is the correct version?--- Oh, yeah."

[18]  He made no complaint about count 5 to his mother or grandmother that day; he did not remember seeing his grandmother that day.  The only doctor he remembered consulting was Dr Brett Towner.  He did not remember seeing Dr Craig Nurcombe but he was "pretty bad with names".

[19]  In relation to count 6, he agreed the episode ended with the appellant masturbating him to ejaculation and "more or less with him congratulating [the complainant], or saying something like, 'You're a man now'."

[20]  When count 7 allegedly occurred, the complainant had a day off school; he had bad acne, the girls were cruel to him and his self-esteem was low.  He made no complaint to his mother about the appellant's sexual abuse even when they were separated.  He was frightened of his father whom he thought ruled him with violence.

[21]  Within a couple of hours of his father moving out of the family home in Brisbane and relocating in Rockhampton, the man who is now his step-father moved in with his two children.  The complainant had a severe and dramatic reaction.  He could not breathe and was admitted to Prince Charles Hospital with a collapsed lung.  He was depressed and was referred to the psychiatric unit where he was treated by a female psychiatrist.  He thought the first time he raised the issue of sexual abuse was in a round about way when he mentioned something to this psychiatrist.  When he was a teenager he frequently missed school and for a time basically left home and lived on the streets of Brisbane.  He became involved in "gothic culture", wearing black lipstick and black clothes and painting his fingernails black.  He sometimes wore black dresses.  His own family and his stepfather's family had difficulty accepting this.  He threw furniture around and was involved in physical fist fights, both at home and at school.  He was self-harming with razor blades or anything else he could find to cut himself.  He drank harmful fluids like nail polish remover and methylated spirits.  He would have discussed these issues with the psychiatrist at Prince Charles Hospital.  He had a number of girlfriends, including B, who was also part of the gothic scene.  B told him that she had been a victim of sexual abuse.  He thought he told the psychiatrist about his father sexually abusing him but he could not remember what he told her. 

[22] Up until he was about 12 years old, he worried about his parents separating.  At high school he had difficulties and was expelled for 28 weeks because he threatened some younger grade 8 students with a knife.  He had taken to carrying a knife as he was scared after having been threatened and bullied at school.  He appealed from his expulsion and was allowed to return to school but part of his behaviour management was regular meetings with Ms Kym Amor, a school support person, together with attendance at the Redlands Child and Youth Mental Health Service (CYMHS).  He saw Ms Amor a couple of times a week.  They discussed his concerns about self-harm and suicide ideation.  He remembered on one occasion telling her that "dad is an arse-fucker" or "butt raper".  She tried to find out what he meant by that comment but he did not offer any further information.  He used the terms "butt raper" or "arse-fucker" to mean a "faggot", "a person who would put his penis into somebody's anus".  He often spoke to her about the physical abuse to which he had been subjected as a child in his own home.  He did not remember telling her that his father had anal sex with him, whether penile or digital.  He really did not think he had "said any nitty gritty stuff to her at all".  He was 90 per cent certain that he had not.  He did not remember telling her that the appellant had anal sex with him, pushing his head between cushions of the lounge.  There was no lounge chair in his bedroom.  He did tell her about some sexual contact a female cousin initiated with him, but that was not in the context of abuse.  He did not tell Ms Amor that the appellant made him have sex with his younger sister, S, and that the appellant may have video recorded it. 

[23] At this period in his life, he was dressing in female skirts, wearing makeup and dyeing his hair, although he did not wear women's clothes to school.  He questioned whether he should remain a male or have a gender change.  It was possible he had the following conversation with Ms Amor:

"I don’t have a father --- Your dad has sure screwed you up; hasn’t he?"

…

Yeah, well, I didn't have to let him screw me, did I? … What do you mean by that comment? … The words speak for themselves."

[24]  The last response was "an easy way of not having to go into it with somebody".  He just wanted her to leave him alone.  He remembered being drunk at school and presenting at Ms Amor's office in a slightly intoxicated state.  She gave him some food and coffee and told him to wait.  He agreed he told her something to the effect of there having been several different sexual abusers in his life.  His first memory of it was when he was about two and a half and neighbours babysat him.  Another incident involved a cousin's friend in the Caboolture area.  Another abuser was a neighbourhood youth who was then captain of his high school.  She pointed out that this did not amount to seven people.  He responded, "I hate my father. … Because he is an arse-raper."  She enquired whether that was in connection to the complainant.  He agreed that he may have nodded in response to her query whether his father had sexually assaulted him.  She may have asked him when this began, and he may have responded "When I was nine years of age", but he could not remember this conversation.  He agreed he would have made very clear to Ms Amor that he did not want the police called in respect of allegations of sexual abuse against the appellant.

[25]  He was unable to remember an incident in February 2004 when he was travelling to the video shop with his stepfather asking him if he had ever been sexually molested.  But he did remember talking to his stepfather about things that had happened to his stepfather as a young person.  He may have told his stepfather about a boy who lived down the street who sexually interfered with him and that this boy had become his school captain.  He did not remember telling his stepfather that the appellant had been sexually molesting him since he was 13.  This was also incorrect as the abuse started when he was aged eight or nine.  There may have been an occasion when his stepfather told him his mother had gone to the police station about the abuse issue and the complainant "lost it".  He did not want to go to the police.  When the police first questioned him he refused to provide them with information as he was scared of the appellant.

[26]  In March 2004, he spoke to a police officer at the Bayside CYMHS premises about the appellant's physical attack on him preceding count 5.  He did not make a complaint to them about the appellant's sexual abuse.  The police told him that he could talk to them about the matters he raised with Ms Amor concerning the appellant, but the complainant wanted to leave and told them he was happy with his own decisions.  He remembered then going with his mother to a doctor but he could not remember anything about the doctor or his discussion with him.  He did not remember having counselling with Relationships Australia with his father, but he accepted he did this.

[27]  In re-examination he gave the following evidence.  His first 2008 statement to police in June disclosed acts which the complainant performed on the appellant at his request.  His second 2008 statement to police in August concerned both acts that the complainant performed on the appellant and acts the appellant performed on the complainant.  He did not include the second series of acts in his first statement to police because he was "really embarrassed".  He honestly did not want to expose too much of what had happened.  He did not want to discuss these matters; they were hard to bring up.  He wanted to "try and get out of it without exposing too much about it, and feeling too embarrassed or experiencing it all again". 

[28]  He was asked about the occasion when he was in Prince Charles Hospital and he believed he disclosed for the first time the appellant's sexual abuse to the female psychiatrist.  He had just undergone surgery, had a tube coming out of his side and was under stress, on pain killers and in a fair bit of pain.  He was not "that healthy in the head" and was "pretty distressed and upset". 

[29]  When he made a disclosure of sexual abuse by the appellant to Ms Amor, she told him that the police would have to be called and he indicated that he did not want this.  That was because the appellant was a police officer and the complainant did not trust the police.  He honestly thought the system was flawed and a "systematic brotherhood" would find a way out for the appellant.  The appellant or an associate with a gun would kill him. 

[30]  In 2004, he did not disclose anything to the police in their interview with him at CYMHS because he was scared that the system would not protect him and he would be harmed.  He did not disclose the abuse to his grandmother because he "had a lot of difficulty wording that stuff".  The only time he tried to tell his mother about it, she abruptly shut him down and he did not pursue the conversation; "she just wouldn't have a bar of it".  She said that if he had not been so violent towards his sisters then he would not have worked up the appellant.

[31]  The complainant's mother, the appellant's former wife, gave the following evidence.  She was married to the appellant from February 1987 until their divorce in July 2003.  There were three children of the marriage: the complainant, and his sisters, L and S.  On one occasion when the family was living in the rural town, the appellant became angry with the complainant for throwing stones on the driveway.  He swore and yelled at him.  She ran outside.  The complainant met her in the doorway.  He was very red in the face, crying and holding his chest.  He had large red marks all over his chest and indentations on his back where he had obviously fallen onto stones.  She put ice on his injuries and washed them and calmed him down and kept all the children out of the appellant's way.  The complainant was "tiny for his age".

[32]  She left the appellant and moved to Brisbane with the children on 19 January 1998.  After about eight months he began to visit the children and they reconciled but it quickly became clear the reconciliation was not working.  The appellant was training to be a police officer and she had taken up a career in hairdressing.  She remembered one Saturday morning when her mother called her at work to tell her to collect the complainant who had come to her mother's home.  When she arrived, he was wearing his martial arts outfit and he had a lump on his head; he was all red and had marks on his chest.  She removed the outfit and discovered marks on his back and bruising on his legs and shins.  He was a mess and was having trouble breathing.  The complainant said he had told S to hide in a bush and she had to find her.  She took the complainant to the local emergency medical centre where Dr Craig Nurcombe was on duty. 

[33]  One Thursday night she was working until about 10.30 pm and came home very tired.  The appellant began to argue with her as soon as she walked inside.  He would not let up.  She asked him to leave her alone so that she could eat her dinner.  He would not stop so she put her plate in the sink.  He then went berserk, throwing and smashing things.  She told him to "[j]ust leave me the hell alone".  He grabbed her wrists and pushed her straight backwards.  Her wrist hit the fridge handle and became bruised and swollen.  She ran to the ensuite.  The complainant and his sister, L, witnessed the incident.  He and L followed her and asked if she was alright.  She asked them to get her some ice and they did.  She tried to stay calm for the children's sake and she put them back to bed in their own rooms.  The complainant was sleeping in his own room and S and L were sleeping in another room.  She went to her bedroom, closed the door and went to sleep.  She did not see the appellant again that evening.  In mid-2002, the appellant, who was by then a police officer, was transferred to Rockhampton. 

[34]  In cross-examination she gave the following evidence.  She did not see an incident during the period they were living in the rural town where, after the complainant had been arguing with his sisters, the appellant dragged him out of the car, flung him to the ground and kicked him (counts 1 and 2).

[35]  When she took the complainant to see Dr Nurcombe after the alleged count 5 occurred, the doctor examined the complainant's injuries.  The purpose of the visit was not for the complainant's acne; he was under a specialist for that condition.  She did not discuss with Dr Nurcombe a problem about the complainant and the appellant arguing with each other.  She took the complainant to Dr Nurcombe because the appellant had physically injured him.  This was the only occasion she took the complainant to see Dr Nurcombe.  The doctor told her that the complainant and his father should have counselling with a group called Connections (now Relationships Australia) or he would have to report the matter to Family Services. 

[36]  The complainant had been learning karate for about three years at this time, with her encouragement because he had been bullied at school.  He did not raise with her the possibility that he was being sexually abused by the appellant.  Had he done so she would have listened to him. 

[37]  Although they lived under the same roof, she had effectively separated from the appellant since September 2001 and she slept in a separate bedroom while he continued to reside in the main bedroom.  On the night when the appellant injured her wrist (count 6), she assumed he was sleeping in the main bedroom.

[38]  Dr Craig Nurcombe gave evidence that on 12 February 2001 the complainant and his mother attended his practice.  She brought the complainant to talk about arguments with his father and this changed to the complainant’s concern about his facial acne.  He did not conduct a physical examination other than to look at the complainant's facial skin. 

[39]  In cross-examination, he agreed that had the child been brought to him because of a physical assault by his father, he would have conducted a physical examination and noted any bruises, abrasions or redness.  He was not the complainant's regular GP and according to his notes this was the only occasion he treated him.  He suggested the complainant and his father undertake some counselling through Relationships Australia.  He understood that the complainant was lashing out, kicking and punching towards the father.  In re-examination he quoted his notes: "Father separation.  Male influence. … annoyed that the father's back.  Fights with Dad. …  Kicks, punches.  … Question Relationships Australia."  His notes also recorded "SCAN unit?" The SCAN unit is a unit based at the Mater Hospital which investigates child abuse.  At first he was concerned that he may have to refer the matter to the SCAN unit but as he obtained more information it was clear that the child was hitting the father, not the other way, so there was nothing to justify the SCAN unit involvement.  He did not have any actual recollection of the consultation but in giving his evidence relied wholly on his notes.  They did not record who was doing the kicking and punching, but he assumed it was the complainant, as he did not refer the matter to the SCAN unit and was obliged to do so if there was physical abuse from the father.  He also had to be careful not to involve the SCAN unit if there was no abuse "because that's going to create problems as well".  He had "to make a judgment call". 

[40]  The prosecution called the complainant's stepfather solely to allow defence counsel to cross-examine him.  He began living with the complainant's mother in about September 2002.  On an occasion after the complainant had returned from the appellant's home in the Rockhampton area to live with his mother, he and the complainant were driving to the video store alone.  It was a couple of weeks before the police interviewed the complainant on 20 March 2004.  He noticed that the complainant was depressed and more distressed than usual.  He was going through a difficult time with large adolescent mood swings.  The complainant said he had had a pretty tough day with the psychologist.  The stepfather was sympathetic and asked the complainant whether he had ever been sexually molested.  The complainant appeared embarrassed but indicated that he had been.  The complainant went on to describe that when he was very young a boy in the neighbourhood, who was now his school captain, had sexually abused him.  He also said that a couple of boys at school had touched him inappropriately.  He did not go into details. 

[41]  He then volunteered that another person had also sexually abused him.  The stepfather said "That person wouldn't happen to be your father, would it?"  The complainant looked away and became teary eyed and emotional.  He said the appellant had been sexually molesting him since he was 13.  The stepfather tried to reassure him; said it was alright; that there was no need to say anything more if he didn't want to; these things happen; and he had had a similar experience as a child.  The complainant gave no further details.  The stepfather raised the matter because the complainant's school guidance officer a couple of weeks earlier had reported that there were suspicions about this.  The complainant's mother wanted the complainant to open up and go to the police, but the complainant was resistant and scared.  On one occasion when the complainant became aware that his mother was at the police station, he became very angry, calling her nasty names.  The complainant began to self-harm about six months after he returned to Brisbane from living with his father in Rockhampton.

[42]  The complainant's sister, S, gave the following evidence.  She remembered one Saturday when the complainant did not want to go to a karate lesson.  The appellant told him he had to go and bashed him; the appellant cornered him and punched and kicked him.  This began inside the house and then moved outside.  When she saw the appellant hitting the complainant, she hid inside (she could not remember where) because she did not really want to see what happened.  The complainant found her and hid her in a bush on a neighbouring property so that the appellant would not find her.  She was afraid the appellant would hit her too.  She did not know how long the complainant and the appellant were out of her view while she was hiding inside.  When the complainant returned he was wearing his karate pants but not his entire outfit.  After he hid her in the bushes, he ran off in the direction of his grandmother's place.

[43]  In cross-examination, she said she remembered the incident because it was very traumatic.  At some point after she had hidden inside the house, the complainant got away from the appellant and found her and hid her outside in the lemon bush.  She may have hidden in her bedroom which she thought was next to the complainant's bedroom.  She did not remember seeing or hearing them fighting and arguing in the complainant's bedroom; they were fighting in the lounge room and outside at the pergola. 

[44]  The complainant's maternal grandmother gave evidence that she remembered an occasion around about February 2001 when she was home and the complainant arrived, knocking hard on the door.  He was really distraught, quite ashen, shaking.  He had welts on his arms and a bump on his head.  She asked him what happened and then contacted his mother at work and told her to come and collect him.  His mother arrived within the hour. 

[45]  In cross-examination, she said the complainant told her when he arrived "Dad's gone crazy and he was hitting into me."  He made no complaint of sexual abuse.  They had a typical grandmother/grandson relationship and she saw him regularly. 

[46]  Psychiatrist Dr Rebecca Allman gave evidence that she was working as a psychiatric registrar at the Prince Charles Hospital in July/August 2003 when the complainant was being treated for a collapsed lung.  He was in a lot of pain and was receiving pain control through a drip which he was able to partially self-regulate, although the narcotic dose and the number of times it could be given were set. 

[47]  In cross-examination, she agreed that he told her that he presently lived with his mother, sisters, stepfather and his two children.  His stepfather and family moved in within two hours of his father moving out.  His own parents' relationship had been physically abusive and he had been subject to physical abuse from his father over many years.  He identified as gothic and was not permitted to go out with the family.  He had been bullied at school.  He had problems with anger management and would throw furniture and become involved in physical fights, both at school and at home.  He had recently run away from home to live with his father in Rockhampton.  He had been cutting his arm from the age of 13.  He said he was depressed.  He made no complaint of sexual abuse by his father.  Her notes recorded: "Depressed mood and repeated cutting of his forearm in response to overwhelming emotions associated with a prejudicial childhood marked by physical abuse … as well as parental conflict."  The young woman he nominated as his girlfriend, B, was attending the CYMHS based at Prince Charles Hospital and she assumed that it may have been as a result of his association with B that he requested the review with her. 

[48]  Kym Amor gave the following evidence.  She was a behaviour management teacher and the complainant's case manager from mid-2003 to 2004 at the high school he attended.  The complainant had returned to school following a period of exclusion and she was working with his medical team at the Redlands CYMHS to assist him and his teachers with strategies to support his return to school. 

[49]  In cross-examination she said the complainant was 15 and 16 at this time.  It was a condition of his return to school that she be his behaviour management teacher.  He visited her, however, on a largely voluntary basis although she was monitoring his participation at school.  He made a report of sexual abuse which she referred to the Redlands CYMHS.  She told the complainant she would do this and that she would also have to pass the information onto his mother.  He was involved with gothic culture dressing mainly in black.  He sometimes wore a black skirt, but not to school.  He was also engaging in acts of self-harm.  This was a problem at the school at this time with 39 children self-harming.  He reported drinking nail polish remover and methylated spirits.  He expressed a real dislike for his father and said that as a young child his father had physically abused him.  She understood there were some difficulties at home with the new family structure involving the stepfather.  One day when discussing his father's physical abuse, the complainant described his father as an "arse-fucker" or "butt raper".  She asked him what he meant but he did not provide an explanation.  Over a period of time, he described physical abuse, emotional abuse and ultimately sexual abuse from his father who was a police officer.

[50]  He first spoke of his father's sexual abuse at the beginning of 2004.  He came to her office and banged on the keyboard saying something like, "I don't have a father."  She responded, "Your dad has sure screwed you up, hasn't he?"  He responded, "Yeah, well, I didn't have to let him screw me, did I?"  She asked, "What do you mean by that comment?"  He responded, "The words speak for themselves" and then changed the subject.  At this point she became suspicious that the complainant may have been a victim of his father's sexual abuse. 

[51]  The first time the complainant made a specific allegation of sexual abuse at the hands of his father was an occasion when he was brought to her rooms in what seemed to be an intoxicated state.  She offered him coffee and food and left him for about 30 minutes.  He seemed to sober up fairly quickly.  He told her that there had been seven different abusers in his life.  The first sexual abuse was when he was two and a half by two teenage boys who were neighbours and family friends visiting his home.  He gave a graphic, violent and disgusting description of the abuse in a sandpit which he claimed made him fearful of sandpits.  He spoke about a cousin's friend in the Caboolture area sexually abusing him.  He nominated another male youth, then school captain, whom he said abused him when he was aged between and 13 years.  She observed, "Well, that doesn't add up to seven."  He responded, "I hate my father."  She asked why.  He responded, "Because he is an arse raper."  He may have used the term "butt-fucker".  She asked, "Is that in relation to you?"  He nodded.  She asked, "Well, has your father sexually assaulted you?"  He nodded again.  She asked, "When did it begin?"  He said it began when he was nine years of age.  She was interviewed by police about this matter on 22 March 2004 at the Redlands CYMHS.

[52]  At this time, the complainant thought he did not want to be a man and was considering a gender change.  He had other physical problems including a lung which would sometimes collapse.  He did not blame his father for the lung problem but he blamed him for the possibility that he may have epilepsy and the need for brain scans which doctors believed may have been linked to his father's physical assaults.  At times, the complainant did not want the abuse reported to police and he was upset with his mother because he believed she was pressuring him to go to police. 

[53]  The complainant also told her that he was sexually abused by his grandfather when he was about seven or eight and there was regular ongoing sexual abuse by a boy from next door.  He discussed destructive relationships with females including with a female school friend, B, who was also receiving treatment at the Redlands CYMHS and was also involved in gothic culture.

[54]  In a statement dated 14 July 2008, she told police that the complainant disclosed that his father's sexual abuse involved him having anal sex with the complainant and the complainant having to perform oral sex on his father.  One incident involved his father having anal sex with him, while pushing his head between cushions of the lounge in their home.  At about this time, he also raised claims of sexual abuse perpetrated on him by others, including a female cousin.  He claimed that the appellant made him have sex with his younger sister, S, and that the appellant possibly video recorded this act.  The complainant said this sexual abuse occurred between the ages of eight and 14. 

[55]  In re-examination, she said that the complainant understood that his allegations of sexual abuse had to be referred by her to the school principal who would contact police and Child Safety authorities.

[56]  Counsel made the following admissions.  The appellant began his police training on 30 October 2000 at the Oxley campus.  He last worked in the Brisbane area on 28 June 2002.  He was on transfer leave from 29 June to 3 July 2002 and recreation leave from 8 July to 19 July 2002.  He worked as a police officer in the Rockhampton area from 22 July 2002 until trial.  On 1 July 2007, he was promoted to Senior Constable.

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

The judge's relevant directions to the jury

[58]  The judge explained to the jury that the seven charges against the appellant must be considered separately and evaluated on the evidence relating to that particular charge.  The jury must return separate verdicts in respect of each charge and as the evidence in relation to each offence was different, their verdicts need not be the same.  The judge also told the jury that if they had a reasonable doubt concerning the truthfulness or reliability of the complainant's evidence in relation to one or more counts, that must be taken into account when assessing the truthfulness or reliability of his evidence generally.  His Honour continued:

"Now, it may occur in respect of one of the counts that for some reason you are not sufficiently confident of [the complainant's] evidence to convict the [appellant] in respect of that particular count. A situation might arise where, in relation to a particular count, you reach the point where, although you're inclined to think that he's probably right, you still have some reasonable doubt about one of the elements of that particular offence. If that situation occurs, then of course you must find the [appellant] not guilty in respect of that particular count. But that does not necessarily mean that you cannot convict the [appellant] of one or more of the other counts. You have to consider why you have some reasonable doubt about that part of [the complainant's] evidence and consider whether it affects the way that you assess the rest of his evidence, that is, whether your doubt about that aspect of his evidence causes you also to have a reasonable doubt about the part of his evidence which is relevant to any of the other counts."

[59]  In explaining the elements of counts 1, 2, 3 and 7, the judge explained that the concept "indecent":

"… bears its ordinary, everyday meaning. It is what the community regards as indecent; it is what offends against currently accepted standards of decency and it must always be judged in the light of time, place and circumstance."

[60]  A few paragraphs later in dealing with counts 4 and 6, the judge referred again to the concept of "indecent", explaining that it "bears the meaning that I've already told you about."  His Honour added:

"In respect of counts 4 and 6, there is no dispute that if the [appellant] did what it is alleged he did, it was both indecent and unlawful. The issue is simply whether or not he did the acts alleged."

[61]  The judge summarised the evidence for the jury, in the course of which he referred to various witnesses' competing evidence, including that of the complainant, his mother, his stepfather, his grandmother, his sister, Ms Amor and Dr Allman.

[62]  When dealing with the use the jury could make of evidence of preliminary complaint, the judge referred to the evidence of Ms Amor and the complainant's stepfather.  He pointed out that although the complainant said he complained to the psychiatrist at Prince Charles Hospital, Dr Allman said that he made no complaint of sexual abuse.  His Honour continued:

"In relation to Kym Amor, the disclosure to her did not relate to any specific offence, [the complainant] did complain of the [appellant] committing anal intercourse against him, but that is not one of the charges before you and he says that, apart from the offences on the indictment, there were no others. Similarly, in relation to the disclosure made to [the stepfather], it was not in relation to any specific offence."

[63]  The judge explained that such evidence of preliminary complaint could be used only to boost the credibility of the complainant if the jury found it was consistent with the complainant's account.  The evidence of what the complainant said to Ms Amor or the stepfather was not proof that the appellant actually committed any of the charged offences.  Depending on what view was taken of the evidence, it could bolster the complainant's credibility:

"because of consistency with his evidence, but it does not independently prove anything.  Here … there is no complaint or disclosure of any specific act.  You may well think the evidence does little, if anything to bolster [the complainant's] credibility, but that is entirely a matter for you.

…

Any inconsistencies between any preliminary complaint or disclosure which you find was made and [the complainant's] evidence before you may cause you to have doubts about his credibility or reliability. Whether consistencies or inconsistencies impact upon the reliability or credibility of [the complainant] is entirely a matter for you. Inconsistencies in describing events are relevant to whether or not evidence about them is truthful and reliable. Inconsistencies are a matter for you to consider in the course of your deliberations, but the mere existence of inconsistencies does not mean that of necessity, you must reject [the complainant's] evidence. Some inconsistency is to be expected, because it is natural enough for people who are asked on a number of different occasions to repeat what happened at an earlier time to tell a slightly different version each time.

…

Now, what I've just said to you about inconsistencies applies to any inconsistencies which you find in the evidence, whether they are between different witnesses, or between different accounts by the same witness, or between different parts of the same witness' evidence. You may think that inconsistencies that you find are not important, or you may think that they are of such significance, either individually or collectively, that they do adversely impact on your assessment of the credibility of one or more of the witnesses, it is entirely a matter for you."

[64]  The judge again reminded the jury that they must consider each charge separately and that if they had a reasonable doubt about an essential element of a charge they must find the appellant not guilty of that charge.

[65]  The judge referred to the considerable delay between when the offences were alleged to have been committed and the complaint to police.  Consistent with Longman v The Queen,[2] the judge warned the jury of how difficult it was to have a fair trial because of the lengthy delay in making the complaint.  For that reason, it would be dangerous to convict the appellant upon the evidence of the complainant alone unless, after scrutinising it with great care, considering the circumstances relevant to its evaluation and paying heed to this warning, they were satisfied beyond reasonable doubt of its truth and accuracy.  That did not mean the jury could not convict the appellant, but the jury must be aware of the forensic disadvantage flowing from the late complaint to police and scrutinise the complainant's evidence carefully before concluding beyond reasonable doubt of its truth and accuracy.  Another factor to keep in mind was that when counts 1 to 4 were committed, the complainant was only eight or nine years old and sometimes a person's recollection of events occurring in childhood may be erroneous and liable to distortion over time.

[66]  The judge then summarised counsel's competing contentions.  The jury retired to consider their verdict at 11.42 am on the sixth day of the trial.  At 4.44 pm they indicated that they were not close to reaching verdicts and the judge allowed them to go home, instructing them to return at 9.30 am the next day.  The court reconvened at 12.45 pm on the seventh day of the trial, the jury having indicated that they were unable to reach agreement on any count.  The judge gave directions, consistent with Black v The Queen,[3] and invited the jury to retire again to see whether they could reach a verdict in respect of each of the charges.  The jury retired at 12.50 pm and returned at 2.39 pm with their verdicts.  During and after the giving of the verdicts, the appellant became very distressed and aggressively protested his innocence. 

The appellant's contentions

[67]  The appellant contends that the verdicts of acquittal on counts 4 and 5 and the verdicts of guilty on the other counts cannot be reconciled as logical and reasonable and therefore, in accordance in MacKenzie v The Queen,[4] the verdicts must be set aside as inconsistent.  The acquittals showed such a diminution in the complainant's credibility or reliability on counts 4 and 5 that the jury ought also to have had a reasonable doubt with respect to the other counts.  Counts 1 to 4 were all said to occurred in the central Queensland rural town.  Counts 5 to 7 were said to have occurred in Brisbane.  It was no answer to the inconsistent verdicts that counts 4 and 5 on which the jury acquitted were consistent with the complainant's initial statement to police in June 2008 that at no time did the appellant do sexual acts to him.  The jury convicted on count 6 which involved the appellant doing a sexual act to him, namely, masturbating him.

[68]  Further, the appellant contends that, irrespective of whether the guilty verdicts were inconsistent with the not guilty verdicts, they were unreasonable and cannot be supported by the evidence.  The appellant emphasises the following features.  The complainant's account was not corroborated.  Counts 1, 2 and 3 were alleged to have been committed during the day in the complainant's bedroom whilst other family members were in or about the house.  There was no fresh complaint.  The complainant chose to move to Rockhampton to live with the appellant some months after the time he alleged the appellant had committed these offences upon him.  The complainant gave inconsistent accounts as to when the alleged sexual abuse commenced.  When he spoke to the police in 2004 about the appellant's physical assault, which he now claims immediately preceded count 5, the complainant made no complaint in respect of the sexual assault in count 5.  He made false statements to Ms Amor that he had been anally raped by the appellant and made to have sex with his younger sister.  In his initial statement of complaint to police in June 2008, he repeatedly stated that the appellant had never committed any sexual acts upon him.  This was inconsistent with his later statement in August 2008 and his evidence.  These matters in combination meant there was a significant possibility that an innocent person had been convicted so that the verdicts should be set aside as unreasonable and not supported by the evidence.

Conclusion

Inconsistent verdicts

[69]  The appellant contends that the jury verdicts were so inconsistent that the guilty verdicts amount to a miscarriage of justice.  The joint judgment of Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen makes plain that the test in determining whether jury verdicts are inconsistent is one of logic and reasonableness.[5]  Appellate courts are reluctant to gainsay jury verdicts and accept a submission that verdicts are inconsistent.  For that reason, if there is a proper path by which the appellate court may reconcile the verdicts, that path will generally be taken.  Their Honours explained:

"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."[6]  [footnotes omitted]

[70]  But their Honours also recognised that:

"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'."[7]  [footnotes omitted]

[71]  In the present case, the jury having told the judge they were unable to reach unanimous verdicts on any counts, the speed at which they then returned their verdicts following the judge's Black direction was surprising.  Even so, I remain unpersuaded that the guilty verdicts are necessarily illogical and unreasonable in light of the not guilty verdicts.  The jury were provided with a copy of the indictment and a copy of the prosecution's particulars on each charge.  Count 5 (on which the jury acquitted) was the most serious of the seven counts as it involved digital penetration of a child's anus, whereas count 4 (on which the jury also acquitted) was the least serious.  The judge correctly told the jury on more than one occasion that they could return different verdicts on different counts if not satisfied beyond reasonable doubt about the elements of one count but satisfied about the elements of another.[8]

[72]  As to count 4, it is true that the judge told the jury that the issue was not whether the touching was indecent but whether the appellant did the touching.  But His Honour also told the jury that the question of whether a touching was indecent was a matter for them to determine in all the circumstances.  The complainant, in his evidence on count 4,[9] described a situation where the appellant barely touched the complainant's penis and prodded his testicles, not apparently for sexual gratification but to explain what they were.  The not guilty verdict on count 4 was surprising in the context of convictions on the earlier counts 1 to 3 and the subsequent counts 6 and 7.  But the jury may have given the benefit of the doubt to the appellant and, following the judge's directions, decided they were not satisfied beyond reasonable doubt on the complainant's evidence that the touching in count 4 was indecent, whereas on the complainant's evidence it plainly was in counts 1 to 3, 6 and 7. 

[73]  There were many reasons why the jury may have been left in doubt about count 5.  The complainant was interviewed by police in 2004 about the physical assault preceding the alleged sexual abuse in count 5, but made no complaint to them about any sexual abuse.  There were significant differences between his account of the circumstances surrounding count 5 and the accounts given by his sister, S; his mother; his grandmother and Dr Nurcombe.  He had a clear opportunity to complain about the sexual abuse constituted by count 5 to these four people shortly after it allegedly happened in 2001, and to Ms Amor and his stepfather who both raised the issue of sexual abuse with him in 2004.  The jury may have considered that these significant inconsistencies and his lack of complaint despite many opportunities raised a reasonable doubt in their minds as to the appellant's guilt.  The same difficulties in the prosecution case were not as manifest in the counts on which the jury convicted. 

[74]  The judge instructed the jury that, if they had a doubt about some part of the complainant's evidence, they must consider whether that doubt caused them to have a doubt about the rest of his evidence.[10]  There is no reason to think the jury did not heed that warning.  I am not persuaded that, a reasonable doubt having been raised in the jury's minds in respect of counts 4 and 5, the jury also had to have a reasonable doubt about the complainant's honesty and reliability in respect of counts 1 to 3 and counts 6 and 7.  There were logical and reasonable explanations, other than a general finding of lack of credibility as to all the complainant's evidence, for the not guilty verdicts on counts 4 and 5. 

[75]  In my opinion the appellant's contention that the verdicts are inconsistent and amount to a miscarriage of justice fails.

Were the jury verdicts unreasonable?

[76]  The answer to the question whether these guilty verdicts were unreasonable and cannot be supported by the evidence is especially difficult.  The complainant's evidence on each count was unsupported by other evidence and he was not an accurate historian, no doubt in part because the alleged offences occurred long ago between 1997 and 2002 when he was aged between eight and 14 and a turbulent and troubled adolescence followed.  Despite many opportunities, it was 2008 before he made a complaint to police about the appellant's alleged sexual abuse which he said occurred between six and 11 years earlier.  His evidence was at times inconsistent with the evidence of the other prosecution witnesses.  Of most concern was his apparently false complaint in 2004 to Ms Amor, his behaviour management teacher, of anal rape by the appellant and being made to have sex with his sister, S.  He gave surprisingly varying accounts in his preliminary complaints as to his age when the alleged sexual abuse began.  There was no doubt on the evidence that the appellant had physically abused the complainant and that he and the complainant's mother had good reason to dislike the appellant so that there was arguably a motive for a false complaint.

[77]  The complainant, however, gave evidence, unshaken after a long and testing cross-examination, that the appellant committed counts 1 to 3 and counts 6 and 7.  There was no competing evidence.  As the appellant has demonstrated, there were weaknesses in the prosecution case and flaws in the complainant's evidence, but it was a question for a properly instructed jury to determine whether the appellant was guilty or not guilty on each count.  After carefully reviewing the whole of the evidence, I am persuaded that it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt.  I do not consider the guilty verdicts were unreasonable and cannot be supported having regard to the evidence.  In my opinion, the appellant's contention that the guilty verdicts are unreasonable also fails.

Was the jury properly instructed?

[78]  But in this case that does not mean the appeal against conviction also fails.  For the reasons I have set out in [77], the state of the prosecution evidence was such that the judge was required to take particular care to remind the jury of its specific weaknesses and that as a result of those weaknesses the jury could only convict the appellant if, after scrutinising the complainant's evidence with great care and bearing in mind those weaknesses, they were satisfied of the truth and accuracy of the complainant's evidence.

[79]  It is true that the judge gave a warning to this effect in respect of delay and the complainant's young age at the time of counts 1 to 4.[11]  But his Honour referred to Ms Amor's evidence of preliminary complaint as potentially bolstering the complainant's evidence, although explaining in general terms that if a witness's evidence was inconsistent with another witness's evidence, it might adversely impact on the credibility of the witness.[12]  His Honour did not warn the jury that the inconsistencies between the complainant's evidence of the appellant's sexual abuse and his preliminary and apparently false complaint to Ms Amor of quite different and even more serious and shocking sexual abuse by the appellant constituted an additional and important reason to scrutinise the complainant's evidence with great care.  In fact, the judge's directions suggested that Ms Amor's evidence could bolster the complainant's evidence when it significantly weakened his evidence.  In this problematic and finely balanced prosecution case in which reasonable juries could either acquit or convict the appellant, the absence of appropriate directions about the effect of Ms Amor's evidence amounted to an error of law constituting a miscarriage of justice. 

[80]  The appeal against conviction must be allowed, the guilty verdicts on counts 1 to 3, 6 and 7 set aside, and a retrial ordered.  The appellant has spent almost eight months in custody.  The prosecution case has, as I have explained, many difficulties and the complainant may not be an entirely enthusiastic witness.  Any future trial will be even more difficult to conduct following the acquittals on counts 4 and 5.  It remains, however, for the prosecution, no doubt in consultation with the complainant, to determine whether it will proceed with a retrial. 

[81]  I would allow the appeal, set aside the guilty verdicts on counts 1, 2, 3, 6 and 7 and order a new trial.

ORDERS:

1. Appeal against conviction allowed.

2. Conviction and verdicts on counts 1, 2, 3, 6 and 7 set aside.

3. New trial ordered.

[82]  MUIR JA:  I agree with the President’s reasons and proposed orders.

[83]  CHESTERMAN JA:  The evidence relevant to the issues raised in this difficult appeal have been set out with great comprehensiveness in the judgment of the President, which has also thoroughly analysed the issues. 

[84]  I agree with her Honour that the convictions should be set aside and that the judge’s directions to the jury were inadequate. 

[85]  I respectfully dissent from the opinion that there should be a re-trial.  The points which are succinctly discussed in paragraph [76] of her Honour’s reasons indicate, to my mind, that a jury acting reasonably could not have been satisfied beyond reasonable doubt of the appellant’s guilt on the counts on which he was convicted.  It is not just that the complainant gave inconsistent stories.  He denied emphatically in his earlier interview with police that his father had committed acts of sexual abuse upon him.  He gave a false account of serious sexual misconduct by the appellant to Ms Amor.  He was clearly a troubled adolescent with emotional needs which may well have translated into motives for punishing the appellant. 

[86]  I am not persuaded that the complainant’s persistence in his testimony at trial with an account which supported the convictions overcomes the earlier demonstrated unreliability of his testimony.  This is, I think, one of those cases in which the jury has been persuaded by the demeanour of the witness and have not paid attention to the objective indications of unreliability in the evidence.

[87]  I agree with the President that the present appeal is a difficult case.  It is close to the borderline on one side of which lie those cases in which it can be seen that a jury acting reasonably should not have been satisfied by the evidence, and on the other side of which are cases where the evidence was capable of supporting a conviction.  In my opinion this case falls just on the side requiring appellate intervention. 

[88]  I would allow the appeal, set aside the appellant’s convictions, and enter verdicts of acquittal.