R v CBC[2012] QCA 28

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P: The appellant was convicted after a 19 day trial of maintaining a sexual relationship with a child with circumstances of aggravation (count 1), four counts of indecent treatment of a child under 16 with circumstances of aggravation (counts 2 to 5) and 11 counts of rape (counts 6, 7, 8, 12, 15, 16, 17, 20, 21, 23 and 25).  He was found not guilty on 11 counts of rape (counts 9-11, 13, 14, 18, 19, 22, 24, 26 and 27).  He has appealed against his convictions contending that the guilty verdicts are unreasonable in that they are inconsistent with the verdicts of not guilty.  A consideration of this ground of appeal requires a thorough review of relevant aspects of the evidence at the lengthy trial; of the judge's directions to the jury; and of the jury's deliberations.

The relevant prosecution evidence

[2] The appellant was the complainant's de facto stepfather since 1998 when she was about seven years old.  She was 21 at trial.  The offences were alleged to have occurred between 28 December 1997 and 31 August 2007 when she was aged between seven and 17.  She gave evidence that counts 1-9 inclusive occurred before she turned 16 and the remaining counts afterwards.  During the period of the offending she lived with her family and the appellant at various houses in south-east Queensland.  The appellant operated a wrecking yard at M until he sold the business in 2000.  From 1998, he operated another wrecking yard at CP.  Some years later, he organised a drag car racing team from the CP site.  The complainant gave evidence that each of the charged offences occurred largely as in the particulars provided to the defence before the trial and in the prosecution opening at trial.

[3] The complainant's evidence included the following.  The first occasion of sexual abuse which she could recall occurred in the toilet at the wrecker's yard at M.  The appellant forced her to put his penis into her mouth (count 2).

[4] One Sunday morning, she thought when she was in grade 7, he woke her early and told her he was taking her to a McDonald's for breakfast.  They left in his car.  He turned off the bitumen road onto a dirt road and stopped in what was then a bush area.  She was wearing underwear and her nightie and he told her to take off her underwear.  He was "really grumpy".  He put his hand between her legs and rubbed his fingers on the inside and outside of her vagina.  She told him she did not want him to do this (count 3).  He became angry.  He desisted and drove to a bitumen road.  He kept yelling at her and saying that if she did not do what he wanted she could leave.  She was crying. 

[5] He turned the car around and drove back to the dirt road.  He stopped, put his hand between her legs and again rubbed her vagina on the inside and the outside (count 4).  She was crying and telling him to stop.  He told her to stop whingeing.  A car came towards them.  The appellant told her to look in the opposite direction in case those in the car saw she was crying.  The driver of the car was a friend, GM.  He stopped and spoke to the appellant without getting out of his car.  He was taking his dog to the vet.  As soon as he left, the appellant continued rubbing the complainant's vagina both inside and outside (count 5). 

[6] One afternoon when she was about 10 years old and living at H, the appellant collected the complainant and her brother, A, from school and took them home.  He sent A out of the house to do some gardening.  In the appellant's bedroom, the appellant licked the inside of her vagina, penetrating it with his tongue (count 6).  He also inserted a carrot into her vagina (count 7).  She went to the toilet.  When she returned, the appellant inserted his penis and had penile sexual intercourse with her for the first time (count 8).

[7] Count 1 was the unlawful sexual relationship encompassed by counts 2-9 and various uncharged acts about which the complainant gave evidence.  The jury convicted on counts 1-8 inclusive.

[8] One night in the family home at H when she was about 11 years old, the complainant's brother, A, came into her bedroom to sleep on the floor.  It was summertime and very hot and he did not have a fan in his room.  The appellant came in early in the morning and took her into her brother's room.  He had a bottle of baby oil.  He shut the door and made her kneel on the bed.  He covered his penis with baby oil, stood behind and tried to put his penis into her vagina.  She kept telling him to stop (count 9).  When he heard her mother cough, he moved away, pulled up his pants and made her do the same.  He then sat on the bed.  Her mother walked in and saw the baby oil on the floor.  She hit the appellant across the face and walked out.  The appellant later told her that he gave her mother the excuse that he had gone in there to masturbate so he did not wake her up; the complainant walked in and he stopped and was just talking to her.

[9] On a later occasion in the family house at T, the appellant came home not long after the complainant and A returned from school.  The appellant was in a bad mood.  He told A to do some gardening and that he had things he wanted to discuss with the complainant.  A went outside.  No-one else was home.  The appellant took a small bottle of vodka from his car and told her to go to his room.  He poured a glass of one-third vodka and two-thirds orange juice and told her to drink it really quickly.  He yelled at her until she drank it all.  He poured her a second one and made her drink it.  He then made her take off her clothes and kneel on the bed.  He stood behind her and put his penis into her vagina and had sex with her for about five or 10 minutes (count 10).  He removed his penis from her vagina and inserted it into her anus.  She cried and told him that it hurt and to stop.  He told her to stop whingeing.  He continued to have anal intercourse for about 10 or 15 minutes until he ejaculated (count 11).  This was the first time anal intercourse occurred.  He cleaned himself up in the bathroom and tried to be nice to her and cuddle her.  Eventually, he said she could go.  She went outside and walked past her brother's room.  He just looked at her.  She vomited on the grass before returning to her own room and shutting the door.  For a week or so afterwards, she would bleed a little whenever she went to the bathroom. 

[10] In cross-examination, she said that her brother did not see her throw up but he later told her that she looked like she was sick or drunk.  When she returned to her room she cut her wrists with a Stanley knife and they bled a little.  The cuts were not very deep and caused no scarring but they were visible marks at the time.  She did not show the cuts to her mother but anyone could have seen them if they looked.  The jury acquitted the appellant on counts 9-11, inclusive.

[11] One Saturday when she was in grade 12, she was at the drag racing shed at CP.  She and the appellant were waiting for others to arrive to work on the drag cars.  He made her take her pants off and lie on the bed in the foetal position.  He lay behind her, put his penis into her vagina and had sex with her (count 12).  A few minutes later an employee, PM,[1] walked in.  She ran into the kitchen.  She heard the appellant talking to PM but could not hear their conversation.  They left together.  The jury convicted the appellant on count 12.

[12] On another occasion in the family home at C, in 2006 she thought, the appellant came home not long after she and A returned from school.  The appellant was in a bad mood and was yelling at them.  He sent A outside to do some mowing or gardening or something of that kind.  The appellant went into his room and demanded she follow.  He was angry about her relationship with her then boyfriend, AE.  He told her she should not be with AE and she would end up barefoot and pregnant by the time she was 19.  He told her to take off her school skirt and underwear and to kneel on his side of the bed.  He stood behind her, put his penis into her vagina and had sex with her (count 13).  After a while he removed his penis and inserted it into her anus.  She told him to stop because it hurt.  He said that it did not hurt and he slapped her across her "arse".  He continued to have anal sex with her "for a while" (count 14).  He left to clean himself up but then returned and said that he had not finished.  He made her kneel back on the bed, stood behind her, again inserted his penis into her vagina and had sex until he ejaculated.  The jury acquitted the appellant on counts 13 and 14.

[13] She attended a Central Queensland drag racing meeting in 2006.  The appellant, A, PD, SE and the complainant drove there and spent the Friday night before the meeting at a motel.  The appellant booked two rooms.  He said the three boys should go in one room and she should share the other room with him.  He told her that he organised her mother to drive up the next day so he could sleep with her.  He made her sleep in the double bed.  He climbed in beside her and had sex from behind whilst she lay in the foetal position (count 15).

[14] A couple of months before she left home in August 2007, in the family home in CV, the appellant grabbed her around the wrist and dragged her down to the carport.  She told him she did not want to go but he ignored her.  He made her kneel on the front passenger seat of the car, inserted his penis into her vagina and had sex (count 16).

[15] The second 2007 rugby league State of Origin game took place on the night of 13 June.  The appellant, SE, DP and the complainant were watching the game on the appellant's bed at the drag racing shed at CP.  After the game, SE and DP left.  The appellant made the complainant lie in bed beside him in the foetal position before inserting his penis into her vagina and having sex until ejaculation (count 17).  She gave evidence of this count only when cross-examined, explaining that she forgot to mention the episode in her evidence in chief because it was late in the afternoon, she was getting a headache and was unable to concentrate properly.  The jury convicted the appellant on counts 15-17, inclusive.

[16] She recalled returning to the drag racing shed at CP from a "promotional thing" for drag racing.  In her evidence in chief she was unsure whether the event was on the north side of Brisbane or at the Gold Coast as they did a lot of promotional events but she thought it involved an Autobarn and was in July or August 2007.  At this time she and PD were friends who sometimes had a sexual relationship.  She and PD got take away food and returned.  She took some "Advil" for her headache and PD left.  The appellant and the complainant then went out and the appellant purchased beer for himself and Pulse (premixed "Red Bull" and vodka) for her.  When they returned she waited in the car while he went into the shed.  He eventually came out, told her to go inside and she complied.  He told her to take off her pants and get into bed.  He made her lie in the foetal position.  He lay behind her and had sex with her from behind (count 18).  In cross-examination the complainant appeared to accept that this incident occurred after a promotion at an Autobarn on the Gold Coast on 23 June 2007.  The complainant's online diary stated that on 23 June 2007 she had taken part in an Autobarn promotion and it rained. 

[17] After count 18 occurred, she went to the wrecking business shed at CP and worked on the computer.  The appellant brought her a Pulse and told her to drink it.  He told her she had to drink the Pulses because he had bought them for her.  She drank two or three and the appellant drank his beer.  She spent between an hour to an hour and a half on the computer until the appellant was ready to leave.  He told her to return to the drag racing shed.  He joined her there and told her he wanted sex again.  He made her kneel on the bed, stood behind her and inserted his penis into her vagina and had sex until ejaculation (count 19).  The jury acquitted the appellant on counts 18 and 19.

[18] On another occasion in 2007, a number of people including the appellant and the complainant, were packing up at the drag racing shed at CP.  She was concerned that if the others left, the appellant would want sex.  She suggested to PD that they go to dinner and that he drop her home afterwards.  PD told the appellant of the plan but he would not agree to it.  Everyone else packed up and went home.  The appellant locked the shed and pretended that he and the complainant were also going home.  They drove some little way up the road but he stopped and turned around.  He was angry with her for wanting to go out with PD when she knew that the appellant wanted sex.  The appellant returned to the shed whilst she stayed in the car.  He came out, swore at her, told her to go into the shed and she complied.  He locked the door and made her follow him into the top part of the building to the bedrooms.  He told her she should treat him like a boyfriend or a mate instead of looking as if she despised him.  He tried to kiss her on the mouth.  She pushed him away.  He said that she would not push anybody else away and asked her why she hated him.  He kept yelling at her.  He pulled his penis out of his pants and made her kneel on the floor.  He put his penis in her mouth (count 20).  He then made her take off her clothes and lie down on an air mattress.  He knelt beside the mattress and licked her vagina before having sex with her from behind whilst she was in the foetal position (count 21).  This continued for 15 to 20 minutes until he ejaculated.  The jury convicted the appellant on counts 20 and 21.

[19] At times in 2007 she stayed at the home of a male friend, JH, whom she knew through drag racing.  In about July, she attended a Friday evening function associated with drag racing.  The appellant, PD and SE were also present.  As she had not seen JH for some time, she spent the night at his house so they could catch up.  JH was working in Brisbane early the next day.  The appellant said he would spend the night at the drag racing shed at CP so that JH could drop her off there on his way to work.  He dropped her at the shed early in the morning.  The appellant opened the door for her and went back to bed.  She went into the shed, closed the door and went towards her room but first she had to walk through the appellant's bedroom.  He told her to get into his bed.  She said she did not want to but he kept telling her that she must.  She had to remove her pants and get into bed beside him.  She lay on her side in the foetal position.  He lay behind her, put his penis in her vagina and had sex until ejaculation (count 22).  The jury acquitted the appellant on this count.

[20] The complainant's mother suffered a stroke in 2007 and was in hospital for some weeks in about June or July.  The complainant and the appellant visited her.  During one visit he locked his keys in the car.  He took a coat hanger from the hospital cupboard and unsuccessfully tried to unlock his car, despite the assistance of a security guard.  The only option seemed to be to smash the car window and he did so.  Once they obtained the keys, they drove to the drag racing shed at CP where people were still working.  When the workers left, she locked up.  The appellant was already in bed.  She walked through his bedroom to go upstairs.  He told her to get into bed with him.  She refused.  He said that he was already angry about having to break his car window and not to make him angrier.  He made her get into bed and lie in the foetal position.  He lay behind her, inserted his penis into her vagina and had sex (count 23).  The jury convicted the appellant on count 23.

[21] For a month or so during 2007 she lived in the drag racing shed at CP as it was convenient to the university where she was studying.  Her boyfriend, AE, also lived there then.  For a time she played volleyball at university on Wednesday nights, returning to the shed after 10 pm.  On one such occasion people were still working on cars but they went home after an hour or so.  The appellant was already in bed.  She closed up the shed, locked the roller door, and on the way back to her bedroom walked through the appellant's room.  He asked her to get into bed with him.  She said she was tired and sore.  He said it would not take long and that she must do what he said.  She got into his bed, took off her pants and lay in the foetal position with him behind her.  He inserted his penis into her vagina and had sex until ejaculation (count 24).  In cross-examination, she appeared to accept this incident occurred on 31 July 2007.  She agreed that the entry in her diary for that day stated that her mother came home from hospital that night.  She maintained that this incident occurred on a night when her mother was not there.  The jury acquitted the appellant on count 24.

[22] On the 2007 Wednesday Exhibition holiday, her mother was in the wrecking business shed at CP attending to book work, and the complainant and the appellant were in the drag racing shed.  She was studying in her bedroom.  The appellant came up and told her to kneel on her bed.  He made her pull her pants down to her knees.  He stood behind her and tried to insert his penis into her vagina.  She kept telling him she did not want this.  He said it could have been over and done with by the time she argued and he continued to try to have sex with her.  He inserted his penis into her vagina and was having sex when SE's father, RE, walked into the shed.  The appellant pulled his pants up, left the room and spoke to RE[2] (count 25).  The jury convicted the appellant on count 25.

[23] The last time the appellant had sexual contact with her was Monday, 20 August 2007, after the appellant and complainant drove to the CP premises with a man, GS.[3]  The appellant yelled at her all morning and told her that she should not be at university because she was not smart enough.  He also insulted her in other ways.  When they arrived at the CP premises, the appellant took her into the drag racing shed.  He said he wanted sex because he would not be getting it for a while.  He knew it was almost time for her period and so he would not be able to have sex with her for about a week.  GS was in the other shed.  The appellant made her kneel on his bed.  He stood behind her, put his penis into her vagina and had sex.  She was unsure whether he ejaculated (count 26).  When he finished he told her that she could go.

[24] Later that day, he asked her to return to the drag racing shed to work on some poses with the drag racing cars for promotional calendars or posters.  He told her to put on her promotional gear: knee high boots, very short shorts and a singlet top with the drag racing team's logo.  She told him she could work on the poses in ordinary clothing.  He became angry.  She began to change into the promotional clothing but he became angrier because she was not changing fast enough.  He made her stand in various positions in front of and behind a car for about 20 minutes before letting her go upstairs to change out of the promotional clothing.  He then called her into his bedroom.  He pulled his penis out of his pants and told her to suck on it.  She told him she did not want to.  He said he was sorry he was "such a nymphomaniac" but just to do it.  He pushed her onto her knees and made her put his penis in her mouth (count 27).  The jury acquitted the appellant on counts 26 and 27.

[25] She also gave evidence of many acts of uncharged sexual abuse during the period spanning the charged offences.  She first complained of the sexual abuse in Easter 2007 to a male high school friend, M-K. 

[26] M-K gave evidence that the complainant told him the appellant had been sexually abusing her since she was around 12 years old.  She became more and more distraught as the conversation continued, was clearly finding it difficult and was crying towards the end.  He had been drinking lightly that evening and he thought she had also been drinking but she was "fairly coherent".  She told him that when she was about 12 years old she walked into a room with the appellant and the appellant masturbated in front of her.  Her mother walked in and slapped him across the face and left.  She said the sexual abuse had escalated and was continuing.  He could not recall her exact words.  About a month later in about April or May 2007, she telephoned him and was quite distraught.  She said she had been raped by the appellant when her mother was not home.  She was tearful and "fairly hysterical".  He gave a statement to police on 26 March 2008. 

[27] In cross-examination M-K agreed that he had been in a relationship with the complainant for about three or four weeks prior to her complaint about the appellant's sexual abuse.  When she told him about it, they had mutually broken up, although at his initiation.  He agreed that her parents went to New Zealand for a drag car race meeting; she was disappointed not to be included but she did not seem "overly put out by it".

[28] DP, a 20 year old woman at trial, gave evidence that she met the complainant and the appellant at the drag racing shed at CP as her then boyfriend, SE, was involved with drag racing.  On 22 August 2007, the complainant telephoned her because the appellant had taken her phone after he read sexually orientated messages between the complainant and her friend, PD, concerning a vibrator.  She said she wanted to leave home and not be around the appellant anymore but she would not say why.  She wanted the telephone number of DP's mother.  When DP came home from work the complainant was at her house.  DP's parents were also present.  The complainant told them that the appellant had been sexually abusing her for the past 10 years and that the last occasion was the previous Monday when he had sex with her.  She said he had repeatedly raped and had sex with her.  He forced her to give him oral sex a few times a week.  She described events during Easter 2007 when the appellant and the complainant's mother had gone to New Zealand for a drag racing event.  The appellant came back during the trip without the mother and made the complainant have sex with him or give him oral sex every day.  She described another occasion when she was in her brother A's room and the appellant tried to have sex or give her oral sex and her mother came in and demanded to know what was happening.  He claimed that he was masturbating.  She described another instance when the appellant forced sex upon her in a shed at CP and a man called Phil[4]  walked in.  The appellant explained to Phil that the complainant was not his stepdaughter but one of her friends. 

[29] CS, a child safety officer with the Department of Communities, Child Safety Services, interviewed the complainant on 30 August 2007 at the home of and in the presence of DP's mother.  The complainant said she had been sexually abused by the appellant since she was eight.  She was 11 when he first had sex with her.  The last time she was abused was about 10 days prior to the interview.  On the first occasion of abuse, the appellant followed her into the bathroom and "made her give him head".  On another occasion when she was 11 years old shortly before she graduated from primary school, she went home after school; the appellant sent her brother outside to play; "played with her"; and then had sex with her for the first time.  The next occasion she described was when she was between 12 and 13.  Her bedroom had a ceiling fan and, as it was a hot night, her brother came into her bedroom to sleep on the floor.  During the night the appellant entered her room, took her into her brother's empty room and tried to have sex with her.  They heard her mother and the appellant put his pants back on.  Her mother came into the room and noticed a bottle of baby oil.  She slapped the appellant and they both left the room.  CS enquired about the nature of the abuse.  The complainant said "it was just sex … after I turned 11".  She also mentioned incidents when her parents went to New Zealand and the appellant came back without her mother; during this period he had sex with her at least once a day.  She said the sexual abuse continued consistently over the nine year period.

[30] Police officer Trewin, who was attached to the Ipswich Child Protection and Investigation Unit spoke to the complainant on 5 September 2007.  The complainant said the appellant sexually abused her from when she was about eight years old up until a few weeks ago.  She gave brief details of times, dates and occasions but the number of incidents was so large she was unable to be specific in this general conversation.  She said the abuse happened upwards of about ten times per month.  Police officer Trewin could not recall after all this time the exact conversation or the details of what the sexual abuse entailed.

[31] GM's evidence was relevant to counts 3-5.  He conducted a nursery at H and knew the appellant, the complainant, her brother A and their mother.  He remembered an occasion when he was taking his dog to the vet at about 7.00 or 7.30 am.  He was driving along a dirt road when he noticed the appellant's car on the side of the road and he pulled over to see if anything was wrong.  The appellant and the complainant were sitting in the car.  She seemed upset and was wearing a nightie.

[32] SE gave evidence including the following.  He met the appellant through the wrecking yard in about mid-2005 and came to know the complainant through a drag racing workshop.  He was still a friend of the complainant.  DP was once his girlfriend.  He often worked on the appellant's drag racing cars and from September 2005 drove them at meetings.  For about six months in 2007, the complainant lived in the drag racing shed at CP because it was convenient to her university.  For some of that time AE, who was then the complainant's boyfriend, also lived there.  SE occasionally stayed the night at the shed when was working late on cars.  He usually slept upstairs where there were a couple of beds.  When the complainant's mother was in hospital, the appellant stayed at the shed most nights so he did not have to drive to the family home in the Gold Coast area.  The appellant slept in a double bed downstairs in the front room.  In March 2006 and on another occasion in 2006, SE was part of the team which attended a drag race meeting in Central Queensland.  The appellant, A, PD and the complainant also went.  All the boys stayed in one motel room and the appellant and the complainant stayed in another.  The complainant's boyfriend, AE, and her mother came up a day later. 

[33] The appellant was very controlling towards the complainant.  If she did not do as he said he would swear at and threaten her.  He would often refer to her in derogatory terms, particularly when she was spending more time at the shed.  He often spoke about "her body, her boobs"; said she was "a good root" or "would be a good root" and would often "comment on the size of her boobs or … the size of her arse".  One Saturday in June 2007 he thought, the appellant told him that:

"… she'd been dropped off about 4 or 5 in the morning and she was cold, so he told her to get into bed and he'd warm her up, so she got into bed with him and she rolled over to go to sleep, and he said he told her that he wanted a root, and to take her pants off, and he said that she didn't say no. And he said it was hard to get it in at first 'cause she wasn't that wet. He said that's probably 'cause he's her old man and not one of the boys. And he said that she was tight and she didn't have to worry about a mess 'cause he's a dry blow anyway."

[34] SE told him he should not make jokes like that.  The appellant said he was not joking; he was telling the truth; it did not matter as he was "not her real dad".  SE told him that just because the complainant got into bed next to him, it was not an invitation to have sex.  The appellant asked what else was he supposed to do, adding that he "wanted a root".

[35] On Tuesday 4 September 2007, SE went to the premises at CP.  The appellant told him the complainant had run away; he was worried she would cause trouble with the police and asked him if her mother had said anything.  He added that he was sorry and he was trying to make it up to the complainant's mother who would no longer sleep in the same bed or share a shower with him.  That night SE removed his belongings from the drag racing shed, explaining to the appellant that he could not cope with knowing that the appellant was abusing the complainant; he had not slept for days.  The appellant said nothing had happened and everything was alright.  SE reminded him of their earlier conversation.  The appellant said that it did not matter; it was all in the past and pleaded with SE not to leave the race team.  He added:

"What was he supposed to do. She got into bed with him and he had a stiff dick, and a stiff dick's got no conscious [sic]. He wanted a root."

[36] SE told him that this was not right as he had raised the complainant as his daughter.  The appellant responded that she was "not his real daughter anyway".  The appellant tried to convince SE to stay with the drag racing team and that the business with the complainant did not matter, adding she was "just a dumb slut" and it would all blow over; that "she's fucked all these other boys, why should he be any different".  SE again explained that the complainant was his daughter and that just because she got into bed next to him did not make it okay to have sex.  The appellant responded: "What about all the times when she sucked my cock."  Following this conversation, SE ceased contact with the appellant and his drag racing team.

[37] PD gave evidence including the following.  He met the appellant in 2004 through PD's father who worked in the car industry.  PD began to help the appellant with his drag racing cars at the CP shed from March 2006.  He met the complainant who was "just a – a kid running around" there.  In December 2006, he began driving one of the appellant's cars at race meetings.  From January 2006 the complainant was at the shed much more often as she was attending university nearby.  He often worked with SE on the drag racing cars and they were friends.  AE lived for a time at the drag racing shed at CP and after he moved out PD and SE sometimes stayed there. 

[38] The appellant always talked down to the complainant and gave her no respect.  He told her she was worthless or useless.  He expected her to do everything for him and it seemed she could do nothing right in his eyes.  On one occasion the appellant was upset about having to break the car window to retrieve his car keys.  He told the complainant she was useless and threatened to drag her down the street by her hair.  On another occasion the appellant said that the complainant "would be a good root" and then he chuckled and said "it's okay, I'm only her stepfather, I can say that".  He told PD and SE that her breasts were too small.  About once a week the appellant would buy alcohol for himself and for the complainant. 

[39] In March 2006, the drag racing team travelled to a Central Queensland race track.  The team included the appellant, SE, A, PD and the complainant.  They spent the Friday evening in a motel.  PD, SE and A shared one room and the complainant and the appellant shared another. 

[40] On 22 August 2007, the complainant telephoned him.  She apologised for ringing on his home phone and explained that she needed to talk.  She said that she had been abused by the appellant for eight years.  She insisted that her allegations were true but did not go into detail.  She was calling from a public phone box down the street and needed help.

[41] In cross-examination, he agreed that he had a sexual relationship with the complainant for a month or two when he was 33 and she was 17.  On 20 August 2007, the complainant told him that the appellant had taken her mobile phone which included graphic text messages from PD. 

The relevant defence evidence

[42] The appellant gave and called evidence.  He denied committing all the specified counts and also denied any improper sexual conduct with the complainant whatsoever.  On 19 August 2007, he became annoyed with her because she was constantly on her mobile phone and he took it from her.  She was very angry with him.  The next day one of his workers showed him how to access messages on her phone.  He had "never seen such filth" and raised this with the complainant.  She constantly requested the return of her phone.  She was also unhappy with him because he asked her to do chores around the house.  On the morning of 22 August 2007 she was very agitated about her phone and this developed into an argument.  He found a message from DP's mother to the effect that the complainant had been skipping volleyball and seeing a man behind her parents' backs.  She was very angry with him, stormed out and said she was going to "get [him] for that".  He drove up the road and they talked in his car.  As she wanted something to eat, he drove her to the shops and gave her a few dollars.  He did not see her again.  He denied he told SE or PD he had sexual activity with the complainant.  Since the complainant had left his home, she associated with PD and SE and both PD and SE had become very antagonistic towards him.

[43] The complainant's brother, A, gave evidence including the following.  He was 19 years old.  He had no recollection of the appellant ever being at home alone with the complainant.  Relevant to counts 10 and 11, he did not recall seeing the complainant walk past his room "looking other than normal" and did not see her vomit on the grass.  He did not recall asking her whether she had been drunk. 

[44] GR gave evidence including the following.  He had known the appellant for about 20 years through the appellant's wrecking yard.  He had also met the complainant, A and their mother.  The last time he saw the complainant was at the wrecking business.  She "blew up and run out the door and on her way out she said, 'I'll get you', or that, and away she went."  She was arguing about her mobile phone.  Relevant to count 22, he remembered an occasion some years after August 2003 when he was catching up with the appellant at his drag racing shed at CP.  They had a few beers and fell asleep on the bed.  They were awakened at about 5.30 am by the complainant.  The appellant opened the roller door and let her in.  She walked straight past and went upstairs.  She did not come into the appellant's bedroom.  GR left a couple of hours later.

[45] The complainant's mother gave evidence including the following.  She met the appellant in 1994 and she and her children (A and the complainant) began to live with him in 1998.  Relevant to count 9, there was no occasion on which she came across the complainant and the appellant in A's room with baby oil.  There was no occasion on which she slapped the appellant.  She knew of no occasion when A slept in the complainant's room; he had a pedestal fan in his room. 

[46] Relevant to count 18, she said that the appellant's drag racing team attended a promotional event at an Autobarn in the Gold Coast area on 23 June 2007.  The complainant and DP were present and were both dressed in promotional gear for this occasion.  The rain brought a premature end to the promotion.  The cars were taken back to the drag racing shed at CP and "everybody" went to the family home at CV.  The complainant and the appellant "must have done" so. 

[47] Relevant to count 24, she recalled her release from hospital on Tuesday, 31 July 2007.  The appellant, the complainant and GR picked her up and took her to the flat in the drag racing shed at CP.  She spent the night with the appellant in their double bed downstairs whilst the complainant slept upstairs. 

[48] Relevant to counts 26 and 27, she gave evidence that on 19 August 2007 the team attended the Nostalgia Drags which was a big event.  It rained but the appellant had a huge marquee set up covering the drag racing cars and merchandise sale.  Even so, when they were packing up, the merchandise got wet.  The following day, 20 August 2007, she went to the drag racing shed at CP with the appellant, the complainant and GR and they sorted the merchandise, ensuring that it was properly dry.  The shed was open for business and there would have been other employees present.  The appellant and the complainant were arguing.  The appellant told the complainant that she should help her mother and the business was not all about glamour.  They also argued about the complainant's phone as she was "always glued to" it.  He took the phone from her and found inappropriate messages.  She did not notice anything untoward happen that day between the complainant and the appellant.

Relevant aspects of the judge's directions to the jury and the jury deliberations

[49] The appellant makes no complaint about the judge's directions to the jury but the following aspects are relevant to the appellant's contentions.  The judge gave the jury a copy of the 27 charges and explained that the case turned significantly on the jury's assessment of the credibility and honesty of witnesses.  They could accept or reject a witness's evidence or they could have concerns about aspects of that evidence and accept parts of it and reject other parts.  Before accepting a witness's evidence they must be satisfied the witness was not only honest but also accurate.  If there was more than one inference reasonably open on the evidence, they must draw the inference favourable to the appellant and give him the benefit of any doubt.  There was no burden on him to establish anything.  He was presumed innocent until the jury were satisfied the prosecution had established his guilt of a particular offence.  In giving evidence, the appellant did not assume any responsibility to prove his innocence.  There were 27 charges to consider.  The evidence in relation to each charge was different and the jury must consider the evidence separately as it referred to each charge. 

[50] The judge then explained the elements and particulars of each charged offence.  If the jury had a reasonable doubt with respect to the complainant's evidence on any specific count, or on any uncharged act, they should take that into account when considering her credibility generally, but it was a matter for the jury as to what evidence they accepted or rejected.  They could only convict the appellant on any count if satisfied beyond reasonable doubt that the complainant was truthful and accurate about that count. 

[51] The prosecutor led evidence from the complainant of uncharged acts committed by the appellant relating to both physical and sexual abuse to show the true relationship between the appellant and the complainant and to place the charged counts in context.  The jury should have regard to that evidence only if they found it reliable and were satisfied beyond reasonable doubt that the complainant was telling the truth about those incidents.  They must not use that evidence to conclude that the appellant was someone who had a tendency to commit the types of offences with which he was charged.  They must not reason that, if they were satisfied he did the uncharged acts, he was therefore likely to have committed the charged offences.  They could only convict him if satisfied beyond reasonable doubt that a particular charge was proven beyond reasonable doubt.  If the jury had a reasonable doubt about a particular charged offence, the appellant was entitled to the benefit of that doubt and to be found not guilty.  If the jury did not accept the complainant's evidence in relation to any uncharged acts, they should take that into account when considering her evidence relating to particular counts. 

[52] There was a long delay before the complainant reported the sexual abuse which she said commenced in late 1997 when she was eight or nine years old.  She made no complaint to anyone until around Easter 2007 when she was 17 and she made no complaint to police until about August 2007.  This meant that her evidence could not be adequately tested or met after such a passage of time and disadvantaged the appellant.  For that reason, it would be dangerous to convict the appellant on the complainant's testimony alone unless, after scrutinising her evidence with great care and considering all the circumstances relevant to its evaluation, they were satisfied beyond reasonable doubt as to her truthfulness and accuracy with respect to the allegations. 

[53] As to the evidence about the complainant's complaint of the appellant's sexual abuse to M-K, DP, the child safety officer and police officer Trewin, this was not evidence supporting or confirming the complainant's evidence; it related only to her credibility.  If she was consistent in the account she gave to others over time and in her evidence in court, the jury may take that into account as enhancing the likelihood that her evidence in court was true.  After summarising that evidence, the judge repeated the limited use to be made of it, again explaining that, depending on the jury's view of it, it could be used to bolster her credit because of consistency.  As the defence explained, any inconsistencies could also impact on the reliability of her evidence.

[54] The judge next summarised the defence and prosecution cases.  The judge concluded by emphasising that the critical issue was the complainant's evidence which the jury must consider with respect to each individual charge and determine whether they were satisfied beyond reasonable doubt that she was truthful and accurate.  In respect of each charge, they must ask whether the evidence is sufficient to prove the appellant's guilt beyond reasonable doubt.  If not, they must find him not guilty.  The jury should not rush to arrive at a verdict.  It was an important case to those involved and deserved their full and complete attention.

[55] The jury retired to consider their verdicts at 3.14 pm on the 13th day of the trial.  They were given some uncontroversial redirections at 3.24 pm and retired again at 3.28 pm.  At 4.51 pm the judge allowed them to return to their homes (as they did throughout their deliberations). 

[56] The jury continued their deliberations the next day, Friday, at 9.30 am.  At 4.37 pm they indicated to the judge that they were "still progressing" and they resumed their deliberations at 9.30 am the following Monday. 

[57] At 4.47 pm the court reconvened and the judge enquired about the jury's request to hear some of the evidence.  They judge indicated this would happen the following morning.  The jury returned at 9.34 am on the 16th day of trial to have read to them the complainant's evidence, both in chief and cross-examination, as to counts 18 and 19.  They retired again to consider their verdicts at 10.22 am.  At 4.31 pm the court reconvened and the judge explained that the jury had requested to hear the complainant's evidence concerning count 24.  The jury returned to the court room at 9.26 am the following day and the relevant transcript was read.  The jury also requested to hear the complainant's cross-examination concerning her electronic diary entry for 20 July 2007.  That was done.  They retired again at 9.44 am.  The court did not reconvene until 4.30 pm when the judge noted that the jury said they were still progressing and had requested to hear another part of the transcript relating to the complainant's electronic diary entry for 20 August 2007.  They returned to court at 4.35 pm and again indicated that they were making progress and were "happy with the way things are going".  The judge explained that she would have the relevant transcript read to them the following morning. 

[58] The court resumed at 9.00 am on the 18th day of the trial, Thursday, and the following transcript was read:

"ASSOCIATE:  Question: Well you have a diary for the 20th of August. We'll see if there's anything there. Quote, 'I love you. End quote.' This is the heading, quote 'I love you. Current mood - smiley face, contemplative. It's odd. You think everything around is crashing down and it feels like the one person you trust is running away. And it gets to a point when you can't deal with it any more and you think you're going to cry. Then they turn around with that smile they only have for you or that touch or even just a brief glance at you. And you feel that they can see deep into your soul, no matter how much you try to block them out. And everything feels okay. And you - and your face breaks into the hugest smile that you can't help and then you wonder why you make the choices that you do and say the things you do. And deep down inside, you know that it's different now and it always will be as much as you don’t want to admit it. And it makes you feel like jumping off a cliff and end it all but at the same time, it feels somehow perfect, like everything right now. If you stop the clock it would be perfect. Nothing would ever hurt again because they were there and they take away the pain and they make you strong and make you want to be someone larger than yourself - larger than life. They make you feel like a princess by doing nothing at all and that's how I feel. I feel so magnificent when you're around. Even when you say nothing. You do nothing at all and it's real. More real than anything else in the world, end quote'. You're obviously writing to someone? Who was that to? Answer: Paul probably. Question: Paul? Okay. All right. Well I suggest that nothing happened in the morning by way of. Answer: It did. Any sexual encounters. Answer: It did."

[59] The jury retired again at 9.09 am.  At 2.57 pm the judge gave further uncontroversial directions.  The court next reconvened in the absence of the jury at 9.00 am on the 19th day of the trial, Friday.  At 9.35 am the jury returned to the court room.  The judge stated that one juror had indicated difficulties in continuing with deliberations into the following week.  With the concurrence of counsel, the judge gave further directions consistent with Black v The Queen[5] with appropriate modifications to allow for the possibility of a subsequent majority verdict.

[60] At 9.40 am, the jury again retired.  The court reconvened at 2.25 pm and the judge enquired whether the jury were still making progress towards their verdict.  The Speaker stated that they had "been quite successful, and we're getting there".  They were "getting closer to having a unanimous decision on all 27 counts".  They retired again at 2.27 pm.  The court reconvened at 4.14 pm and the judge enquired once more whether the jury were "still progressing" and whether, given the difficulty for one juror in the following week, they felt they were likely to reach unanimous verdicts on all counts before 5.30 pm.  The Speaker stated that they had verdicts on 20 counts and were "really close" on "a couple of others".  The judge explained that the jury could continue to deliberate with all 12 jurors past 5.30 pm or continue their deliberations the next morning (Saturday).  The jury retired to consider that question at 4.23 pm.  At 5.43 pm they returned with unanimous verdicts on all 27 counts.

The appellant's contentions

[61] The appellant's counsel conceded that the acquittal on count 9 was logically explicable with the guilty verdicts on the basis that the complainant's evidence may not have satisfied them beyond reasonable doubt that there was penetration, in circumstances where an alternative verdict of attempted rape was not left for their consideration.[6]  He contended, however, that the not guilty verdicts on counts 10 and 11, 13 and 14, 18 and 19, 22, 24, 26 and 27 were inconsistent with the guilty verdicts, making all the guilty verdicts unreasonable.  There was no logical or reasonable explanation for the guilty verdicts.  This case was within that limited category of cases where the guilty verdicts represented an affront to logic and common sense, strongly suggesting a compromise of the performance of the jury's duty.  The quality of the evidence on the counts on which the appellant was convicted was no stronger than on those counts on which the appellant was found not guilty.  There was no evidence corroborating the complainant's evidence on any count.  The not guilty verdicts strongly suggest that the jury did not accept the complainant as a credible witness.  All convictions should be quashed and verdicts of acquittal entered.

Conclusion

[62] Guilty and not guilty jury verdicts on disparate counts do not make the guilty verdicts unreasonable if the different verdicts can be logically and rationally explained on the evidence: MacKenzie v The Queen.[7]  An appellant has the obligation to establish that the inconsistent verdicts amount to an unacceptable affront to logic and common sense requiring appellate intervention.[8]  Appellate courts should be cautious before concluding that a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty on another count.  Nevertheless, there are cases where the different verdicts amount to an unacceptable affront to logic and common sense and strongly suggest a compromise of the performance of the jury's duty so that appellate intervention is required to prevent a possible injustice.  Where this is so, an appellate court must not hesitate to set aside the convictions.  Whether the different verdicts amount to an affront to logic and common sense will depend on the facts of each case.[9]  In determining this question, the court must remember that, as Applegarth J explained in R v SBL,[10] a jury verdict of acquittal is not necessarily a positive finding that the events did not occur.  The disparate verdicts may reflect no more than that the jury were not satisfied beyond reasonable doubt that a charged count occurred in the way or at the time described by a complainant in evidence.

[63] As is clear from my summation of the judge's directions, the jury knew they must consider each charge separately and could return different verdicts on each count.  The many days over which and the manner in which the jury considered their verdicts suggested they followed that directive conscientiously and undertook their solemn duty with great care, although their deliberations ultimately concluded with unexpected speed when faced with the possibility of deliberating on Saturday.  The question here is whether the disparate verdicts are logically irreconcilable and unreasonable so as to amount to a miscarriage of justice: see s 668E(1) Criminal Code 1899 (Qld) and MacKenzie.

[64] In answering that question I will return to discuss the evidence on the counts on which the jury acquitted the appellant, other than count 9.  The jury found the appellant not guilty on counts 10, 11, 13 and 14.  Count 10, an act of penile vaginal intercourse, and count 11, an act of anal intercourse, were said to have occurred when the complainant was aged between 14 and 16.  Count 10 was said to have immediately preceded count 11.  The jury may have considered it significant that the complainant made no complaint of anal intercourse when she told M-K, DP, the child safety officer and police officer Trewin about the appellant's sexual abuse.  The judge explained to the jury that consistency between the complainant's complaint to these witnesses and her evidence in court was something that they could use to strengthen her credibility also and that any inconsistencies could be used to weaken her credibility.[11]  The jury may have considered that the absence of any complaint of anal intercourse to all these witnesses raised a doubt, not only as to whether any episode of anal intercourse occurred but also as to whether the vaginal intercourse she alleged immediately preceded the anal intercourse occurred.  Those comments are equally apposite to the jury's not guilty verdicts on count 13, another act of penile vaginal intercourse said to have immediately preceded count 14, an act of anal intercourse.  For these reasons, the not guilty verdicts on counts 10 and 11 and counts 13 and 14 are logically reconcilable with the guilty verdicts. 

[65] I turn now to the acquittals on counts 18 and 19.  The complainant accepted in cross-examination that these offences occurred on 23 June 2007.  She noted in her electronic diary that it rained that day.  The appellant and the complainant's mother both gave evidence that there was a drag racing promotion at an Autobarn at the Gold Coast on 23 June 2007; that it rained; that a number of people were involved with unpacking the promotional items at the drag racing shed at CP; and that the complainant and the appellant were not alone at the shed that day.  That evidence may have caused the jury to conclude that the complainant's evidence on counts 18 and 19 was insufficient to persuade them beyond reasonable doubt that those offences occurred in the way she described.  For these reasons, the not guilty verdicts on counts 18 and 19 are logically reconcilable with the guilty verdicts.

[66] The jury also acquitted the appellant on count 22.  It is true SE's evidence of the appellant's admission[12] seemed to support the complainant's evidence on count 22.[13] The complainant's evidence on this count did not make clear that there was any other occasion when she was dropped back at the drag racing shed at CP early in the morning.  GR gave evidence in the appellant's case[14] that he was present at about 5.30 am when the complainant was dropped back at the shed and that he slept in the same bed as the appellant that night and morning.  It followed from his evidence that the appellant could not have had sex with the complainant that morning.  GR's evidence may have caused the jury to have a sufficient doubt about the reliability of the complainant's evidence in respect of count 22.  For this reason, the jury's verdict of not guilty on count 22 is logically reconcilable with the guilty verdicts.

[67] The jury also acquitted on count 24.  In cross-examination, the complainant accepted that count 24 occurred on 31 July 2007 and in her electronic diary she recorded that her mother came home from hospital that night.  The complainant's mother and the appellant gave evidence that she spent the night she was discharged from hospital at the drag racing shed and slept with the appellant in his bed so that the offence described by the complainant could not have occurred on 31 July 2007.  This may have been sufficient for the jury to have a doubt as to whether count 24 occurred in the way, and at the time described by the complainant.  For those reasons, the jury's not guilty verdict on count 24 is logically reconcilable with the guilty verdicts.

[68] The complainant's evidence as to counts 26 and 27, on which the jury also acquitted, suggested that those offences both occurred on 20 August 2007, the day after a drag racing event at the Gold Coast.  The complainant's mother gave evidence that, at that drag racing event, the appellant's promotional merchandise was moistened by rain.  She said she was present at the drag racing shed at CP on 20 August 2007 drying out the merchandise so that there was no opportunity for the appellant and the complainant to be alone together.  Further, late in their deliberations, the jury asked to have read to them the complainant's electronic diary following 20 August 2007.[15]  The mother's evidence and the diary entry may have caused the jury to doubt whether non-consensual sex with the appellant occurred on 20 August.  For these reasons, the not guilty verdicts on counts 26 and 27 were logically reconcilable with the guilty verdicts.

[69] Even so, the appellant contends that the jury's doubts about the veracity of the complainant's evidence on so many counts must mean that they should not have accepted her evidence on any count. 

[70] I do not consider that, in this case, the jury's doubts about the reliability of the complainant on counts 10, 11, 13, 14, 18, 19, 22, 24, 26 and 27 meant that they must also have had doubts about her evidence in respect of counts 1-8, 12, 15-17, 20, 21, 23 and 25.  I have four reasons for reaching that conclusion.  First, the complainant's evidence in respect of the counts on which the jury convicted was broadly comparable with the complaints she made to M-K, DP, the child safety officer, and police officer Trewin.  Second, GM's evidence[16] provided persuasive support for the complainant's evidence on counts 3-5.  Third, the evidence of PD and SE about the sleeping arrangements in the Central Queensland motel provided persuasive support for the complainant's evidence on count 15.  Fourth, the complainant's evidence received support in a general way from the evidence of PD and SE about the appellant's sexual comments concerning the complainant.  Indeed, the jury may well have found that SE's evidence of his conversations with the appellant were an admission that the appellant had a sexual relationship with the complainant.

[71] From this lengthy review of the evidence, the judge's directions, and the jury's deliberations, it is clear to me that the jury undertook their onerous role assiduously.  After careful scrutiny of the evidence and heeding the judge's directions, they ultimately determined to give the appellant the benefit of any possible doubt on the evidence.  But where they had absolutely no doubt they accepted their community responsibility and convicted the appellant.  The differing verdicts are explicable and do not amount to an affront to logic and common sense.  There has been no miscarriage of justice.  It follows that the appeal against conviction must be dismissed.

ORDER:

Appeal against conviction dismissed.

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

[73] ATKINSON J:  I have had the benefit of reading the reasons of McMurdo P.

[74] I agree that the appeal should be dismissed for the reasons given.