R v KAG[2012] QCA 194

SUPREME COURT OF QUEENSLAND 

1. MUIR JA: Introduction The appellant, FAB, was charged jointly with the appellant, KAG, with four counts of exposing a child under 16 years (with the aggravating circumstance that the child was under 12 years) to an indecent act (counts 1 to 4).  FAB was also charged with threatening to cause detriment to persons with intent to prevent them from leaving property which they were lawfully entitled to leave (count 8).  KAG was charged with two counts of wilfully and unlawfully exposing a child under 16 years to an indecent act by himself (counts 5 and 6).  In respect of count 6 there was the aggravating circumstance that the complainant was under 12 years.  KAG was also charged with indecently dealing with a child under 16 years (count 7).

2. FAB was acquitted of counts 1, 2 and 4. There was a directed acquittal on count 8. She was convicted on count 3. KAG was also acquitted of counts 1, 2 and 4, but convicted of counts 3, 5, 6 and 7. The appellants appeal against their convictions.

3. The complainant children had been removed from their mother and placed into foster care prior to the alleged offences. Counts 1 to 4 concern an occasion at a house in Wulguru in which the appellant FAB resided.  The children attended the property on a supervised visit.  FAB was alleged to have performed fellatio on KAG in the presence of the complainant, CR (complainant 1) and in the presence of the complainant, FL (complainant 2) (counts 1 and 2); and KAG and FAB allegedly exposed complainant 1 and complainant 2 to an indecent act, namely the exposing of KAB’s penis (counts 3 and 4).

4. Counts 5 and 6 alleged respectively that KAG exposed his penis to complainants 1 and 2 on 5 June 2010. Count 7 concerned the alleged touching of complainant 1 on the buttocks on 5 June 2010. Counts 5 to 8 occurred on an unsupervised visit.

5. Complainant 2 was born in December 2001 and complainant 1 was born in December 1997.

Complainant 1’s record of interview

6. In an interview with a police officer, complainant 1 gave evidence to the following effect. She was dropped off at a house where FAB apparently resided with KAG and another female. She was standing next to complainant 2 when KAG “touched [her] on the bum… with his finger”.  She said “…he just slide it up my arse”.  Asked to tell the police officer more about that, she said, “Um I dunno”.  Complainant 1 glared at KAG who kept asking her to come with him.  She refused.  FAB said, “Don’t be silly” to her and then said “Go in there – [KAG] is in there waiting for you”.

7. Asked where the finger went when “he slid his finger up your arse”, she said, “Um it just touched my arse”. A little while later, FAB said to both girls, “Youse two come back in here… [c]ome in here or – or I’ll scald you with this hot water”. The children refused and ran away.

8. Some time later, asked to describe what KAG did, she said, “Um he went all the way up my arse”.

9. When KAG touched her “he had his thing hanging out”. She thought that KAG came out of the room he was in to where the complainants were three times. She then referred to a fourth time. She said that:

“…every time me and mum was – ah no she would say um ‘Do you still want to do that thing with [KAG]’ and I’d say ‘Nuh’ and then she said – and she’d say ‘You have to or – or things will get worser’. And I – and I don’t know what she meant by worser.”

10. Asked what she meant by “that thing” she said, “Um to suck his dick”. She said that a person called Peter who worked with Townsville Child Safety was on the verandah at the time. In cross-examination, complainant 1 said that she was first touched by KAG “[o]n [her] bum… [n]ear [her] leg”.  Asked if she was touched on the right or left side of her “backside” she said, “[r]ight”.  After this, KAG went off to the “bedroom” and she did not see him again that morning.

11. The above evidence related to counts 5, 6 and 7.

12. In an earlier incident at Wulguru, FAB told the girls, who were playing cards in the lounge room, that she had a surprise. The girls went into their mother’s room, where they found KAG sitting on the bed. KAG handled his penis. FAB “had to do it” and “then he tried to make me and [complainant 2] do it”. “He put it in front of … our face… [a]nd then we screamed”. KAG said nothing and FAB, who was in the room, took the girls out of the room. When they went outside, she saw the child safety officer, who was “just walking in the [front] door”. He asked, “What happened” and FAB told him that “we were crying from the dog”. She and her sister said nothing.

13. This part of the statement relates to counts 1 to 4.

Complainant 1’s cross-examination

14. It was put to complainant 1 that she had made up her account of her mother sucking KAG’s penis in front of her in the room.  She denied that.

15. In cross-examination by counsel for FAB, complainant 1 accepted that when she visited her mother she always had a carer with her who was called “Mark”.  She accepted that she got on very well with him and that he would always stay at the house when she and her sister were there.  She accepted that she had given her interview to police later in the day on which she said that she had been “touched… on the bum”.  In cross-examination, she said that the incident in which she was asked to go into “the cupboard” or “bedroom” by her mother had occurred on the previous day.  Mark was not there, but another carer named “Peter”, who was a friend of Mark’s, was there.  She accepted that he was standing outside.

16. This evidence relates to counts 5 to 8.

17. Questioned about an occasion on which she said that KAG had walked up to her “with his dick hanging out” and on which FAB “was sucking [KAG’s] dick in the bedroom”, she was asked what made her go into the bedroom and she replied, “[be]cause my mum said that she had a surprise”. They took the cards into the bedroom, where KAG was sitting on the bed watching TV. They played cards there for a couple of minutes before FAB performed fellatio on KAG. KAG came up to the girls who were at the end of the bed. They screamed loudly and cried as they both ran out of the bedroom and ran into the carer who was coming through the front door. Complainant 1 accepted that this was the only occasion on which either she or her sister had screamed out and on which the carer had come in to find out what was happening.

18. This evidence relates to counts 1 to 4.

Complainant 2’s record of interview

19. In her police interview, complainant 2 was asked what had happened that day.  She explained that they went to their mother’s house, where a man who was wearing only shorts came out of a room and touched her sister on the bottom.  They then ran away until a woman named T came.  When at the house, she went into her mother’s room and the man was there playing with his phone.  She mentioned that the girls were “making beads” on a table near the kitchen.  Asked to tell the officer more about KAG coming out of the room with only his shorts on, she said, “Um, ummm I don’t know that part… Um well he came out with boxer shorts and that’s all I know”.  Pressed on the point, she said, “Well um, oh I forgot”.  Asked again about KAG coming out of the room, she said, “Um well he walked past [complainant 1]… and than (sic) he touched her in the butt”.  Asked to tell more about that she said, “Um I don’t know”.  FAB told the girls to “get inside” and that she wanted to talk, but they ran down the stairs.  FAB threatened to kill them.  She also said, “get inside or I’ll clap you over the ears”.

20. Asked again to tell the interviewer more about KAG coming out of the room, she again said that she did not know “that part”. Asked what she saw, she said, “Um I only saw, when he came out his rude part was hanging out”.  Asked, “Tell me about that part”, she replied, “Well every time we walked out his rude hangs out”.

21. Asked about touching complainant 1 “in the bottom”, this exchange occurred:

“COMPLAINANT 2:Well he walked past [complainant 1] and than (sic) he touched [complainant 1] bottom and than (sic) [complainant 1] said don’t and than (sic) she was about to cry.

BAKER:Tell me about her saying don’t.

COMPLAINANT 2:Well can’t remember that part.

BAKER:Ok you said he walked past her

COMPLAINANT 2:Yep

BAKER:How did he walk past her?

COMPLAINANT 2:Wait, he was walking and than (sic) he touched [complainant 1]’s bottom and than (sic) [complainant 1] said don’t and than (sic) mum said don’t cry, don’t cry.

BAKER:Umha

COMPLAINANT 2:And than (sic) she and than (sic) she said, mum said that’s what happens.

BAKER:Ok, tell me about mum saying that.

COMPLAINANT 2:Umm, I do not know that part.

BAKER:Ok, so you said he touched [complainant 1]’s bottom

COMPLAINANT 2:Yep

BAKER:Tell me more about that.

COMPLAINANT 2:Ah well um well he’s said that he no wait, can’t remember that part.”

22. She was then questioned about what happened the day before when KAG was in the cupboard. She said that KAG “was waiting in the cupboard and than (sic) mum said um come here and than (sic) so he did and than (sic) mum said go in the cupboard and than (sic) [complainant 1] said no and than (sic) she ran out”. This was said to have occurred at the house of her mother’s friend and that at the time the carer was reading a newspaper.

23. All of the above evidence of complainant 2 related to counts 5 to 8.

24. Asked whether something had happened “one time at Wulguru”, she said, “Yeh, well we went into the room, I looked by the door and than (sic) [KAG’s] rude part was hanging out”. They were playing cards. Asked to tell the interviewer more about KAG’s rude part hanging out, she said, “Um can’t remember that part”.

Complainant 2’s cross-examination

25. In cross-examination by counsel for KAG, complainant 2 accepted that she had not seen KAG touch her sister’s “bottom”.  She said that nobody had told her that her sister had been so touched.  She said that her sister told her that she hated KAG and that she also hated him for that reason.  Asked when she first saw “it was hanging out of his shorts”, she said that it was the second time KAG came out of her mother’s room.  KAG made a cup of tea and went back into the mother’s room.  He spoke to FAB, but not to the girls.

26. Asked about the incident involving the cupboard the day before her police interview, she said that she did not see or hear KAG in the cupboard, but was told about the incident by her sister when they were running away.

27. Asked about the incident at Wulguru, she said that she, her sister and mother were playing cards when they went into the mother’s room where she saw KAG behind the door. She accepted that she told police that “his rude part was hanging out again”.

28. In cross-examination by counsel for FAB, complainant 2 gave evidence to the following effect. She accepted that a carer by the name of Mark would normally be present when she and her sister visited their mother. She accepted that she got on well with the carer called “Mark” and that she knew that if anything happened she could speak to Mark about it. She said that Mark was present on the day that she gave her interview to the police officer.

29. It was then suggested to her that Mark was not there and she agreed. She accepted that her mother became angry with her and her sister when she saw them standing near the gate. She told them to get back inside or she would kill them. She agreed that her mother’s language was no different to that used by her on other occasions when she would “rouse” on them. She was asked whether she recalled her mother “coming in and telling [complainant 1] to get into the cupboard, or something”. She responded, “Well, Mum called [complainant 1] to come in for her”. Asked if she said anything about going into a cupboard, she responded, “Well, I wasn’t listening, I wasn’t there… I was outside… Still watching the road”. She confirmed that she did not recall her mother telling her sister to go into a cupboard. Asked if she remembered telling the police officer something about the mother asking her sister to go into a cupboard, she replied, “Well, that’s [what] [complainant 1] told us”.

30. Questioned about the incident at Wulguru, when she told police something about seeing KAG in a room, she said that her mother, herself and her sister went into the room, that the incident occurred “a long time before” the day on which she gave her interview, that when they were in the room KAG “walked over to mum and his penis was still hanging out… and then after that he walked over to [complainant 1] and then [complainant 1] start – screaming”. She said that her sister ran out to Mark who was standing in the hallway and she followed. It was put to her that she had not told the police officer that there was an occasion on which KAG, her mother, her sister and herself went into the room together. She responded, “I don’t remember”. She accepted that she did not see her mother “do… any rude things” with KAG. She insisted that she, her mother and sister did go into the room where KAG was and that KAG had “his rude bits hanging out”. She accepted that this happened when Mark was standing outside. She said she and her sister were both screaming and crying and Mark heard them and walked inside. She said that her mother told Mark that she and her sister were “just fighting”.

Other oral evidence

31. Mr Mark Smith, an employee of Child Safety Support, gave evidence to the following effect. He took the complainants on a number of occasions to a house in Wulguru in which FAB was living. On every such occasion, he went inside to ascertain the condition of the house and to see who was there. When KAG was in the house, Mr Smith would “stay inside around the lounge room area”.  He had seen KAG dressed only in boxer shorts, but never with his genitals exposed.

32. On one such visit, he was told that KAG was not at the residence. He was in the front yard of the house when he heard “someone yell”. Within seconds he was “standing near the lounge room window” and could see complainant 2 “playing the PlayStation”.  He entered the house, asked what was going on and was told by F that “they were fighting… over the video game”.  The girls said nothing, “they didn’t look scared”.  They were not crying and did not look as if they had been crying.  He then sat down in the lounge.  On none of the visits to the house did he notice any sign of the girls being “frightened or scared”.  He said that “both girls were very, very quiet on all subsequent visits”.  Nothing was said about a dog barking.

33. Ms WMM gave evidence to the following effect.  Complainant 1 had been a foster child of hers.  On 5 June 2010, complainant 1 came to her crying, saying, “Don't make me go back there.  Don’t make me go back there”.  She asked what had happened and was told “A man at Mum’s had grabbed me on the arse and wanted me to go into the bedroom”.  She was asked who the man was and was told “KAG”.  Asked if complainant 1 said anything else to her, she responded:

“Yes. She said – after the conversation of ‘KAG who?’, I then asked her – oh,  she – she come out and said he flashed his thing at her. I then said, ‘“Thing”, as in penis’, and she said, ‘Yes’. And I – I said to her, ‘What? Did he drop his pants or’ - ‘No’ – she said, ‘No. He put it out through the buttons of his boxer shorts.’”

34. Complainant 2 was present at the time. Ms WMM then telephoned the police.  When she was waiting for the police to arrive, complainant 1 told her that “last year” FAB had “got the girls to go into the bedroom at the Wulguru house” where KAG was in the bedroom.  He had said, “Suck my dick” to them.  She described complainant 1 as “a very quiet girl” who “wouldn’t say much”.

35. Miss TTN said that complainant 2 was one of her foster children at relevant times. She took the children for an unsupervised visit to their mother on 5 June 2010.  On Saturday afternoon she arrived at Ms WMM’s place to find complainant 2 distressed, but not crying.  Both girls came running to her and complainant 1 told her that KAG tried to touch her.  Complainant 1 told her that KAG was “waiting there in the cupboard” but did not venture any explanation and Ms TTN did not ask for one.  Complainant 1 was very distressed.

36. Neither KAG nor FAB gave or called evidence.

FAB’s appeal

37. I will now address the grounds relied on by FAB on her appeal.

The trial judge erred in failing to direct appropriately in relation to the use of evidence of discreditable conduct and to warn against propensity reasoning

38. After the conclusion of the evidence, the primary judge ruled that FAB had no case to answer in respect of count 8.  Counsel for FAB argued that the trial judge failed to take into account in his summing up the fact that evidence led by the prosecution in relation to count 8 was no longer directly relevant to any of the remaining counts.  In that regard, he submitted that after the trial judge’s ruling, the evidence in respect of the conduct of FAB and KAG on 5 June 2010 could amount only to evidence of discreditable conduct.  However, it was contended that its probative value in relation to the allegations against FAB in counts 1 to 4 was slight.  Those counts were in respect of events some eight to 12 months earlier.

39. The primary judge’s direction in relation to the use of the evidence under consideration against FAB is to be found in the following passage from the summing up:

“I then take you to the submissions made by Mr Lynham on behalf of Ms FAB. He began, of course, by referring to the eighth charge, and that you must disregard that particular charge in looking at the offences that occurred here. Necessarily though, any evidence that is given that you may feel supports or contradicts other evidence that might otherwise have been applicable to that charge may be used because it is part of the evidence. But you are not to engage in any consideration or any evaluation of the evidence so far as it affects count 8, which is no longer before you, and I’ll come to in a moment what we’ll do with count 8 – but I’ll just leave that for the moment.

Mr Lynham then referred to the fact, quite rightly, that Ms FAB was not charged with any event with respect to the events in ABC Street, in Townsville, on the 5th of June 2010. As you can see from your particulars, they all involve Mr KAG. Therefore, Mr Lynham submitted you should look carefully at counts 1 to 4, and he referred you to the time period, which I’ve again referred you to, and I don’t intend to take you through again. He referred you to separate acts which occurred, although close in time, one being the oral sex allegations, and the other, the assertion of Mr KAG walking over to the two children in the context of [complainant 1] having given evidence about [sic] she was told to ‘suck it’, ‘it’ being his penis.

So, as Mr Lynham indicated, Ms FAB is only involved in the events with respect to Wulguru.” (emphasis added)

40. Counsel for FAB submitted that in the absence of any direction as to the proper use to be made of the evidence of events on 4 and 5 June 2010, there is a risk that the jury made too much of it. KAG was found guilty of counts 5 and 6 which involved his exposing himself to both complainants. The jury may well have found that, in June 2010, FAB had a practice of tolerating, or conniving in, such behaviour and reasoned that she was the sort of person likely to have connived in indecent exposure previously.

41. The effect of the trial judge’s direction was that any evidence which may have been led by the prosecution in respect of count 8 remained relevant and could be used by the jury in respect of the other counts involving FAB if the jury considered that such evidence supported or contradicted other evidence against FAB.  In other words, the practical effect of the direction was that the evidence concerning count 8 was part of the general body of evidence available to be used for all purposes.  Nothing was said which would have caused the jury to conclude that evidence relating to counts 5 to 7 was not generally admissible against FAB.

42. Counsel for the respondent submitted in his outline of argument that there was no behaviour alleged against FAB in respect of the cupboard incident which could have amounted to discreditable conduct. At its highest, it was argued, there was a suggestion that FAB said KAG was waiting for complainant 1 in a cupboard.  It was submitted also that any threats made by FAB against the children when they ran away were not linked to any abuse by KAG and there was an innocent explanation for FAB’s conduct: concern over the children running on a road.  Counsel for the respondent further submitted that the relevance to the cases against FAB of the events of 5 June 2010, was “simply part of the narrative [of] how the complaints came about [and the] jury could not have used it in any other way in the circumstances.”

43. Counsel for the respondent submitted that if there was any perception of a risk that the jury might use the events of 5 June 2010 in any other way against FAB, experienced defence counsel would have raised the matter.

44. I am unable to accept the respondent’s arguments: they substantially understate the gravity of the evidence against FAB, which was either not relevant to the remaining charges against FAB or was relevant only for a limited purpose.

45. As complainant 1 recounted the count 7 incident, FAB was unperturbed by, and even approving of, KAG’s touching of complainant 1 on the buttocks. On one view of the evidence, she countenanced his conduct in exposing his penis to the complainants.

46. Complainant 1’s statement contained the following exchange concerning the events on 5 June 2010:

“COMPLAINANT 1:No mum wouldn’t care what happens

BAKER:Yeah. Why do you think that

COMPLAINANT 1:Because him and mum planned it

BAKER:Okay. Why do you think they planned it

COMPLAINANT 1:Cause every time me and mum was – ah no she would say um ‘Do you still want to that thing with [KAG]’ and I’d say ‘Nuh’ and then she said – and she’d say ‘You have to or – or things will get worser’. And I – and I don’t know what she meant by worser

BAKER:M-hmm. So she says ‘Do you still want to do that thing with [KAG]’

COMPLAINANT 1:Yeah”

47. The inference was plainly open from the evidence of both complainants concerning FAB’s direction to complainant 1 to “go in the cupboard” that FAB was attempting to procure complainant 1 to engage in sexual conduct with KAG. It will be appreciated that the cupboard incident occurred after the incident in respect of counts 1 to 4. In that incident, it was asserted by complainant 1 that KAG had been fellated by FAB in the presence of the complainants and had attempted to have them do likewise.

48. The passage from complainant 1’s statement quoted above also contained inadmissible expressions of opinion which should not have been put before the jury or which, once admitted into evidence, should have been the subject of appropriate directions. Counsel for the respondent, in his oral submissions, properly conceded that the inadmissible material should not have gone into evidence and that a warning in relation to propensity reasoning would have been desirable.

49. In summary, the evidence in respect of counts 5 to 7 depicted FAB as a disreputable person who not only condoned but encouraged the sexual abuse of her young daughters. That evidence was particularly prejudicial to FAB as the case against her in respect of count 3 was that she aided and abetted KAG in exposing his penis.

50. In his reasons in R v WO,^[1] Keane JA quoted the following passage from the reasons of Hayne J in KRM v The Queen:^[2]

“As McHugh J points out in his reasons, the circumstances in which propensity evidence may be adduced are limited, and the use to which a jury may properly put propensity evidence is also limited. If evidence is led of misconduct by an accused which does not form the subject of a charge being tried, a warning against the danger of propensity reasoning will ordinarily be required. By contrast, the fact that there are multiple counts included in the one presentment does not necessarily give rise to a requirement that a propensity direction be given. Generally, the separate consideration direction is sufficient warning against misusing evidence of other charged acts.

Evidence of uncharged acts, in cases about sexual offences, does present some particular difficulties. Often enough, if evidence of uncharged acts were not admitted, each of the several transactions constituting the charged acts could only be presented as an unreal and not very intelligible event (cf O'Leary v The King (1946) 73 CLR 566 at 577, per Dixon J). In particular, knowing that a complainant alleged that a particular act occurred as one in an otherwise undifferentiated course of offending by an accused may throw an altogether different light upon what otherwise may seem to be an inexplicable course of behaviour by the complainant in submitting, without protest, to what is alleged to have occurred. I therefore agree with McHugh J that until this Court decides to the contrary, courts should treat evidence of uncharged sexual conduct as admissible to explain the nature of the relationship between the complainant and the accused, just as they have in the past. I agree that this may well mean that trial judges must warn juries of the limited use that can be made of evidence of that kind and that sometimes, perhaps often, they will have to give warnings about propensity reasoning.” (emphasis added)

51. The principles articulated above and, in particular, in the passages emphasised, were not put in doubt by HML v The Queen.^[3]  

52. Counsel for the respondent argued that the failure to give an appropriate direction did not occasion a miscarriage of justice. He pointed to the fact that the jury had acquitted on counts 1, 2 and 4 and to the strong evidence of complainant 1 supporting count 3.  In light of this evidence, he submitted that the proviso^[4] should be applied if the Court would otherwise have been of the opinion that there had been a miscarriage of justice.  The difficulty with this submission is that the Court is not in a position to know the extent to which the jury’s thinking in relation to count 3 was influenced by the offending evidence.  It is quite possible that such evidence coloured the way in which the jury viewed the relevant evidence of the complainants.  In my view, it would not be appropriate to apply the proviso.

53. It is relevant that no re-direction was sought but it is not fatal to the success of this ground.^[5]  For the reasons given above, in the absence of an appropriate direction, there was an appreciable risk that the jury engaged in impermissible reasoning and that FAB was thereby denied a fair trial and her conviction must be set aside.  Whether as a result of the acquittals on counts 1, 2 and 4, a retrial would have been appropriate given the need for full effect to be given to the acquittals and to avoid prejudice to FAB from the leading of evidence relating to counts 1, 2 and 4, needs little consideration.^[6]  FAB was sentenced on 5 August 2011 to a term of imprisonment of six months wholly suspended with an operational period of twelve months.  I note that counsel for the respondent quite properly acknowledged the practical difficulties which would impede the presentation of the prosecution case should there be a re-trial.

The trial judge erred in failing to give a Markuleski direction

54. Counsel for the appellant argued that a direction along the lines of that discussed in R v Markuleski,^[7] should have been given.

55. In Markuleski, Spigelman CJ said:^[8]

“It is not necessary to specify any precise words for such a direction. That will depend on the circumstances of the case. It will often be appropriate to direct a jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant’s evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant’s evidence generally.

On other occasions it may be appropriate for a judge to indicate to the jury, whilst making it clear that it remains a matter for the jury, that it might think that there was nothing to distinguish the evidence of the complainant on one count from his or her evidence on another count.

Or it may be appropriate to indicate that, if the jury has a reasonable doubt about the complainant’s credibility in relation to one count, it might believe it difficult to see how the evidence of the complainant could be accepted in relation to other counts.

The precise terminology must remain a matter for the trial judge in all the particular circumstances of the specific case. The crucial matter is to indicate to the jury that any doubt they may form with respect to one aspect of the complainant’s evidence, ought be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant’s evidence with respect to other counts.”

56. After a lengthy deliberation and a second viewing of the complainants’ recorded evidence, the jury informed the Court in a note that they were having difficulty in reaching a unanimous decision “for charges 1 to 4 for both defendants”. They sought “some advice on how to proceed”. The primary judge then gave a conventional direction along the lines of that recommended in Black v The Queen.^[9]  When giving this direction, the trial judge reminded the jury that given the nature of the case a finding of guilt against one accused on count 1 or 2 would very likely lead to a finding of guilt against the other.  His Honour contrasted that with counts 3 and 4 in which, as FAB was an aider, it was open to find one accused guilty and one not.

57. In those circumstances, it was argued, a further Markuleski direction was required.  The link between counts 1 and 3 was not merely the credit of the complainant but the way in which it was particularised.  The jury should have been directed that if they were to acquit the appellant of count 1 then they should carefully consider whether that doubt compelled an acquittal on count 3 for the reasons given later in the discussion of inconsistent verdicts.

58. Neither counsel sought a re-direction in respect of the subject directions which were:

“Now, it may be that in fact that inconsistency that made you wonder about the first charge that you considered, may not have an effect when you consider the second charge. But, in essence, the credibility and reliability of the witness depends on the whole of the evidence with [sic] witness gives.

Now, that may mean that you can draw a distinction between the evidence given on one occasion and the evidence given on another occasion. But, if you have reason to doubt on the first occasion, you must at least bring that into account in your consideration as to whether you should have a doubt on another occasion.”

59. Counsel for the respondent submitted that the direction given was adequate as it complied substantially with the Markuleski direction in the bench book.^[10]  The bench book relevantly provides:

“If you have a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or more counts, whether by reference to her demeanour or for any other reasons, that must be taken into account in assessing the truthfulness or reliability of her evidence generally.”

60. Keane JA discussed the rationale for such a direction in R v Ford^[11]as follows:

“As the reasons of Spigelman CJ in R v Markuleski^[12] show, the particular risk of unfairness, which needs to be addressed by the giving of a direction (which I shall refer to for convenience as a Markuleski direction) that any doubt which a jury ‘may form with respect to one aspect of a complainant’s evidence, ought be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant’s evidence with respect to other counts’,^[13] is a risk which arises especially in sexual assault cases (albeit not peculiarly in such cases) with multiple counts involving a single complainant and a single accused where a jury’s finding of not guilty on one or more counts is apt logically to damage the credibility of the complainant on other counts because there is ‘[i]mplicit in the … acquittal … a rejection of the complainant’s account of the events which were said to give rise to [the] count’ on which the accused is convicted.^[14] This risk is apt to arise because, in such cases, ‘[t]here is nothing in the complainant’s evidence or the surrounding circumstances which gives any ground for supposing that [the complainant’s] evidence was more reliable in relation to [the counts on which the accused was convicted] than it was in relation to [the counts on which the accused was acquitted]’.^[15] In summary, the risk of unfairness which creates the occasion for the giving of the direction is the risk that the accused will be denied the chance of acquittal on all counts if, given the state of the evidence, such a result ought reasonably to follow if the jury were to reject as unreliable any part of the complainant’s account of what occurred.

It is the risk of this particular kind of unfairness to the accused which requires a trial judge to refer ‘to the effect upon the assessment of the credibility of the complainant if the jury finds itself unable to accept the complainant’s evidence with respect to any count.’^[16] The purpose of such a reference is to ensure fairness to the accused ‘in a word against word case’^[17] by supplementing the traditional direction that the jury should consider the evidence, as well as the question of guilt, separately in relation to each count.”

61. His Honour then pointed out that the desirability of giving such a direction had been questioned by the Victorian Court of Appeal in R v PMT^[18] and by the Full Court of the Supreme Court of Western Australia in Lefroy v The Queen.^[19]

62. In my view, the direction given by the judge was adequate and did not need repetition. The point of principle is not whether it complied, substantially or at all, with the bench book, but whether it sufficiently drew to the jury’s attention the need to bear in mind that a finding against a witness’ credibility on a particular part of that witness’ evidence may bear upon the assessment of the witness’ credibility in respect of another aspect of her evidence or upon her evidence generally.

63. The direction fulfilled its intended role and, I might add, this was not a word against word case.  Complainant 1’s evidence was corroborated in substantial respects by the evidence of complainant 2 and vice versa.

64. I am fortified in my conclusion that the direction was sufficient by the fact that neither defence counsel nor the prosecutor sought a re-direction or raised the matter with the trial judge.

The inconsistent verdict ground

65. Counsel for FAB argued that the verdict on count 3 may indicate compromise or may have been influenced by propensity reasoning based on later uncharged conduct. It was submitted that whatever the process involved, the result was an unreasonable verdict. I have already addressed the propensity argument.

66. Counsel for FAB submitted that the failure of complainant 1 to complain to Ms WMM about the fellatio was not capable of explaining the apparent inconsistency as counts 3 and 4 were inextricably linked and complainant 1 was not seen as sufficiently credible to support a guilty verdict on count 4.

67. Counsel for the respondent submitted that there were rational explanations for the differing verdicts and noted that the trial judge directed the jury about separate verdicts. In that regard, his Honour said:

“Now, in respect of each charge, each defendant is entitled to have the case decided on the evidence, on the law that applies to him or her, as it relates to the particular charge, and of course, at the end of the day, you return separate verdicts in respect of each defendant, and separate verdicts with respect to each charge against each defendant.

Because the evidence is different in the different charges – except obviously those which involve each of the complainants being there at the same time – your verdicts need not be the same. They need not be the same either with respect to the charges or the defendants.”

68. There is a rational explanation for the acquittals on counts 1 and 2 (the fellatio counts), the conviction of KAG and FAB on count 3 and the conviction of only KAG on count 4. The evidence of complainant 1 was not corroborated by the evidence of complainant 2 in respect of counts 1 and 2.  The jury could well have reasoned that if the incident had occurred as complainant 1 described, it would have made a significant impression on complainant 2 and was unlikely to have been forgotten.  The acquittals do not necessarily mean that complainant 1 was disbelieved.  It may well be the jury concluded that, in the circumstances, the accused should be given the benefit of the doubt.  The following explanation by Gleeson CJ, Hayne and Callinan JJ in MFA v The Queen^[20] of why a jury might return a verdict of not guilty in a sexual offence case despite accepting the complainant as a credible witness is pertinent:

“In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant’s evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.”

69. A possible explanation for the not guilty verdict for count 4 is that complainant 2’s evidence was generally much vaguer and more inconsistent than complainant 1’s evidence.

70. The principles applicable to the determination of the issue under consideration are stated in the following extracts from the reasons of Gaudron and Kirby JJ in MacKenzie v The Queen:^[21]

“3.Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test: ‘He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.’

4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a ‘merciful’ view of the facts upon one count: a function which has always been open to, and often exercised by, juries.”

71. After referring to observations of King CJ in R v Kirkman,^[22] their Honours said:

“We agree with these practical and sensible remarks.

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

72. For the reasons given above the jury’s verdict in this case is not an affront to logic and commonsense. This ground was not made out.

Conclusion

73. For the above reasons, I would order that FAB’s appeal against conviction be allowed, the conviction on count 3 be set aside and a judgment of acquittal be entered.

KAG’s appeal

74. KAG appealed on the following grounds:

“1.The verdict of the jury is not a true verdict but a compromise.

2. The Guilty verdicts on Counts 3, 5, 6 and 7 are inconsistent with the Not Guilty verdicts on counts 1, 2 and 4.

3. The verdicts of the jury are unreasonable or insupportable having regard to all of the evidence.

4. The Guilty verdicts of the jury on Counts 3, 5, 6 and 7 are against the weight of the evidence.

5. The Learned Trial Judge erred in allowing the jury to re-watch the 93A video statements of the complainants [complainant 1] and [complainant 2] without requiring the jury to re-watch the pre-recorded cross examinations of the complainants.”

75. Although KAG’s outline of argument was prepared by counsel, he was not represented on the hearing of his appeal. He made no oral submissions.

Grounds 1 and 2

76. Grounds 1 and 2 may be addressed together.

77. In his written argument in respect of ground 1, KAG placed particular reliance on the fact that in respect of counts 1 to 4, complainant 2’s evidence did not support complainant 1’s account of fellatio and the attempt to have the complainants fellate him. It was submitted that given complainant 1’s clear and firm evidence of KAG’s behaviour on the occasion in question which, on her account, occurred in the presence of complainant 2, “[t]here is no basis to differentiate between expos[ing] to [complainant 1 or complainant 2] but that is what the jury did in finding Guilt on Count 3 but not Count 4”.

78. The submissions advanced in support of ground 2 were to the following effect. The jury, in acquitting on counts 1 and 2 must have accepted that the complainants lied to the police and the Court in relation to the relevant incident. Their evidence was inconsistent with that of the child safety officer present at the time. There was also conflict between the respective accounts given by the complainants in respect of the 5 June 2010 incident.  Complainant 1 said that she had asked complainant 2 if she had seen KAG touch her on the backside (to which she replied yes) but complainant 2 said in her evidence that she had not seen it, “but did not know how she knew about the incident”.  The not guilty verdicts demonstrate the jury’s rejection of the veracity of the complainants.  Their verdicts on the guilty counts are an affront to logic and commonsense.

79. The above discussion in the FAB appeal under the heading “The inconsistent verdict ground” is applicable to both grounds 1 and 2.  The discussion in relation to the alleged failure to give a Markuleski direction is also applicable.

80. The guilty verdicts for counts 3, 5, 6 and 7 and the not guilty verdicts on counts 1, 2 and 4 are explicable for the reasons given above.  Additionally, the offending conduct in respect of counts 5, 6 and 7 occurred at a different time and place to the conduct in respect of counts 1 to 4.  Complainant 1’s evidence in respect of counts 5, 6 and 7 was also corroborated in part by the evidence of complainant 2.  Another matter which may well have influenced the jury was that it was the count 5, 6 and 7 incidents which led to an immediate complaint and the recitation by the complainants of relevant events to police officers while those events were no doubt fresh in the complainants’ minds.

Grounds 3 and 4

81. Counsel for KAG submitted that the inconsistency between Mr Smith’s evidence and that of the complainants meant that the count 1 incident could never have happened and that the complainants must have lied about the incident.  It was submitted also that the inconsistencies between the girls’ respective accounts of the incident shows that “one or other child is lying again”.  It follows, it was submitted, that a jury could not have been satisfied of KAG’s guilt beyond reasonable doubt.

82. Whether guilt could be established beyond reasonable doubt depended on acceptance by the jury of the evidence of the complainants. The jury were entitled to accept the evidence of complainant 1 in relation to count 3 even if it was not supported by her sister’s evidence. Complainant 2 was much younger than complainant 1. Her evidence was much vaguer and it is reasonable to conclude that she was not the focus of KAG’s sexual attentions. Moreover, having regard to her age at the time, it would not be surprising if her perception of relevant events differed from those of her sister.

83. The observations of Mr Smith cast doubt on the count 1 to 4 incident but the jury were entitled to accept the core of complainant 1’s account in relation to count 4. Mr Smith was not present when the alleged incident took place. His evidence was that he heard “screaming or yelling” to which he responded. Whatever he heard caused him to go inside the house immediately. FAB ventured an explanation of the commotion to Mr Smith. Complainant 1 asserted that the explanation was false. KAG did not give evidence. Neither of the complainants spoke at the time and although Mr Smith does not recollect noticing any signs of distress, the jury were not bound to accept that he accurately or perceptively appreciated the situation he was observing.

84. The difference in the evidence of the complainants is not a consideration which strongly supports KAG’s case in this regard. Apart from the matters mentioned earlier, the complainant’s differing accounts strongly suggest that there was no collusion between them.

85. Consequently, grounds 3 and 4 were not made out.

Ground 5

86. Ground 5 was not made out. The trial judge directed the jury when discussing their request to see the recordings of the police interviews, that they must consider the whole of the evidence and reminded them that they had to take into account the cross-examination. After the tapes were played, the judge again reminded the jury to consider all of the evidence including the cross-examination and all arguments put before them. There were two defence counsel at trial and neither took issue with the judge’s course of action or directions. Defence counsel for KAG specifically said that as there were two tapes to be played he was not pressing for the cross-examination to be played.

87. It is improbable that each defence counsel did not consider whether to press for the cross-examination discs to be re-played and there were sound forensic reasons why counsel may not have wanted the jury to see and hear complainant 1 firmly maintaining the accuracy of her evidence. Counsel may also have been reluctant for the jury to see and hear complainant 2 giving her account without any hint of dissembling.

88. There was no resulting unfairness or miscarriage of justice.

89. I would dismiss KAG’s appeal.

90. WHITE JA: I have read the reasons for judgment of Muir JA in these appeals and agree with his Honour’s reasons and the orders which he proposes.

91. HENRY J: I agree with the reasons of Muir JA and with the orders proposed by his Honour.