R v LAC[2013] QCA 101

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P: The appellant was charged with maintaining a sexual relationship with a child (count 1); six counts of rape (counts 2, 4, 6, 8, 10 and 12); six counts of indecent treatment of a child under 16 (counts 3, 5, 7, 9, 11 and 13) and one count of attempted rape (count 14).  At the end of the prosecution case, the Crown endorsed the indictment that they would not proceed further on count 14.  After an eight day jury trial, he was convicted on counts 1, 7, 11 and 13.  On counts 6, 10 and 12, he was found not guilty of rape, but guilty of the alternative count of indecent treatment.  He was found not guilty on all remaining counts.

2. He has appealed against his conviction on three grounds. The first is that the verdicts are inconsistent. The second is that the guilty verdicts are unreasonable. The third is that the trial judge "failed to direct the jury in accordance with Direction No. 34.2 of the Bench Book" and that a miscarriage of justice resulted.^[1]

3. A discussion of these grounds of appeal must commence with a review of the evidence at trial.

The evidence at trial

The complainant's evidence

4. The complainant gave evidence under s 93A Evidence Act 1977 (Qld) by way of three statements to police on 4 August and 10 and 17 September 2009 when she was 16 years old.  She also gave evidence at trial by way of closed circuit television as permitted by pt 2 div 4A Evidence Act.  She was then 19 years old.  In essence, she alleged that the appellant, her cousin, sexually abused her on many occasions when she was aged between 12 and 15 and he was aged between 19 and 22.  Count 1 encompassed the period of all the alleged offending from December 2005 until January 2009.  Counts 2 to 5 allegedly occurred at the home of the complainant's Aunty J in outer suburban Brisbane between 21 December 2005 and 12 March 2006.  Counts 6 to 11 allegedly occurred at the complainant's family home in a mountain area in south-east Queensland between 10 March 2006 (the day before the family moved into the mountain house) and 13 March 2007 (the day after the family moved out of the mountain house).  Counts 12 and 13 allegedly occurred after the complainant's family moved from the mountain house to suburban Brisbane.  The complainant also gave evidence of uncharged acts of sexual abuse during the period covered by count 1, some of which occurred at the appellant's family home in outer suburban Brisbane.

5. At the first police interview the complainant said that in 2007, when she was in grade 8 and both her parents were in Alice Springs, she was staying with Aunty J.  The first episode of sexual abuse occurred one night after she had been at the appellant's family home and he took her back to Aunty J's home.  The home was locked upstairs and she had to sleep downstairs.  She was lying in bed.  He was on a separate bed watching TV.  When she was asleep, he came to her bed.  He put his hand over her mouth and said that if she told anyone, he would hurt her.  He touched her and put his hand down her pants.  He started to "rape" her "but he, still had his clothes on".^[2]  This happened for about half an hour.  He then went to his own bed.  She thought this happened on a weekend, because she did not have school, about three or four weeks after she moved from Alice Springs.  She added that he put his finger into her vagina and this hurt (count 2).  He then put both his hands into her bra from the bottom and kept fiddling with her (count 3).  She was not injured and she did not tell anyone. 

6. She said the next episode of abuse occurred the following weekend in the same place. Her parents were in Alice Springs.  Her sister, W, Aunty J and her uncle were upstairs.  She was downstairs watching TV when the appellant came down, locked the door and lay next to her.  He did the same thing.  He put his hands down her pants and put them in her vagina, pushing his finger in and out (count 4).  He then put his hands up her shirt (count 5).  He stayed for a little while and then left.  He again said that he would hurt her.  She had a shower and felt sick.

7. The sexual abuse continued, either at the appellant's family home, her family home or Aunty J's home. It happened on about 10 occasions at his family home in his bedroom which his girlfriend, C, and his young son shared. There were three double mattresses on top of each other in one corner and another single bed. He said that if she "didn't sleep over there" he would kill her "and stuff".^[3]  He repeated his behaviour: sticking his fingers in her vagina.

8. In 2007, her family moved to the mountain house. When the appellant stayed over, which was nearly every weekend, he would sneak into her room, shut the door, get on top of her, kiss her back and neck, and touch her before sticking his hands down her pants. Sometimes C also stayed over. The first incident in the mountain house happened when she was asleep in her room. He came in and shut the door. He told her not to tell anyone or he would hurt her and her brothers and sisters. He kissed her and stuck his hands down her shirt (count 7). He then stuck his hands down her pants and put his fingers in her vagina (count 6). He kissed her and again told her not to tell anyone.

9. The police asked if she recalled the last time he abused her in the home on the mountain. She replied that this happened during the week the family was moving out of the mountain house. She was sleeping alone in her room. Her parents were sleeping in their room. The appellant was supposed to be sleeping in the lounge room. He came into her bed and told her to be quiet. He put his hands into her pants and his fingers inside her vagina (count 10). He stuck his hands up her shirt and kissed her (count 11). He said "just 'cause [you're] moving, it's not gonna stop"^[4] and then left.  The next morning she had a bath and tried to drown herself but no-one knew; she only told her mother about this the day before the police interview.

10. The first person she told about the appellant's conduct was her young female cousin, SP. They were sitting out the front of the complainant's home. The abuse had led to her thinking of suicide and she needed to talk to someone about it.

11. Her family moved from the mountain house to suburban Brisbane where the appellant continued to abuse her.  He stayed at her family home in Brisbane for two weeks when he and the complainant's father were undertaking a security course.  One day the appellant was drinking with SP's older sister and the complainant's father.  She became angry because the appellant was acting as if nothing was happening.

12. After she moved with her family from Brisbane to a coastal area, she also told two school friends, JJ and MA, and a neighbour, E, about the abuse.  E told the complainant's parents. 

13. The appellant never did more than put his fingers inside her vagina, touch her "boobs" and kiss her.^[5]  She did not notice anything unusual near her private parts.  The police asked did she "ever bleed or anything like that?"  She responded "[a]bout three, four times."^[6]  On one occasion at the mountain house, he kept moving his fingers "really, really hard" inside her and when she had a shower she noticed she was bleeding.^[7]  Sometimes after he had abused her in the Brisbane family home, he threatened to hurt her little sister to whom she was very close.  These incidents happened nearly every weekend and sometimes during the week. 

14. She told police that the appellant's last episode of sexual abuse took place at her family home in Brisbane.  The appellant had not sexually abused her since her family moved in December 2008 to a coastal area.

15. The police interviewed the complainant a second time to attempt to clarify some matters. She described in more detail the clothing she was wearing and the type and position of the furniture in the various places where the incidents occurred. She repeated her account of counts 2 and 3: he put his hand over her mouth, stuck his fingers inside her vagina and "kept shoving them in and out."^[8]  This hurt her.  He then stuck his hands in her bra and felt her breasts, rubbing his hands all over as he lay on his side.

16. The police questioned her again about counts 4 and 5 which she said occurred at Aunty J's home on the sofa bed. She confirmed that her parents were in Alice Springs at the time and that it was a weekend because she was not at school.  When the appellant locked the door she was scared because she knew what was going to happen.  He put his hands down the front of her pants inside her knickers and stuck his fingers inside her vagina.  This hurt at the top of her belly and inside.  He pushed his fingers in and out.  He then felt her breasts and rubbed them.  He threatened to hurt her before he left.  She washed herself in the shower for 20 minutes, changed the sheets and returned to bed.

17. The abuse continued in the appellant's bedroom at his family home. When she stayed there she slept in his room on the single bed with his young son whilst the appellant slept on the double mattress with C. One night she felt the appellant touching her hands. He put his son on the double mattress and moved closer to her; the double bed was right up against the single bed. He got up and lay in the single bed next to her. He stuck his hands inside her knickers and put his fingers in her vagina, pushing them in and out. When he stopped, he lifted her shirt, touched her belly and kissed her on the neck. Afterwards, he returned to his bed and put his son back with her. She lay there, crying and upset. She did not know exactly when this occurred but it was at night-time. Her mother had returned from Alice Springs but her father was still there.  Earlier that afternoon, when she, her mother and her siblings were at the appellant's parents' house, the appellant followed her upstairs to the toilet and said that if she did not ask her mother if she could stay over he would hurt her sisters and brother, adding, "don't think I won't."^[9]

18. On another occasion whilst her father was in Alice Springs, the complainant, her mother and siblings visited the appellant's family home.  Everyone was downstairs.  She went upstairs to get a drink and the appellant followed.  He told her to ask if she could stay over and, if she did not, she knew what was going to happen.  She asked her mother if she could stay over.  After her mother and siblings left, everyone went upstairs.  She watched TV while the appellant's mother cooked dinner.  After dinner, she continued watching TV before sleeping in the appellant's bedroom in the single bed with his son.  The appellant and C fell asleep on the double bed.  Later that night, the appellant came into the single bed.  She started to cry because she knew what was going to happen.  He stuck his hands down her pants and felt her legs.  He put his hands down her knickers.  He pushed his finger in and out of her vagina for a couple of minutes.  He kissed her on the cheek.  He told her not to tell anyone because she knew what would happen if she did.  He left for about five minutes.  When he returned, he went to his bed and fell asleep.  She just lay there.  She did not tell anyone about this episode.  She could not remember any other incidents occurring at the appellant's family home.

19. The police began to question her about the incidents at the complainant's mountain house but at her request the interview was adjourned until another day.

20. The police interview resumed on 17 September 2009. Police asked her to describe what happened with the appellant at the mountain house. She said that her family was having a movie night in the shed and her father invited the appellant. The appellant waited until everyone was asleep and turned off the TV. He lay next to her on a single mattress. He said that if she told anyone, she knew what would happen.  He put his hands down her pants and stuck his fingers in her vagina (count 8).  He rubbed her body and breasts (count 9).  He told her to go upstairs into a room but she did not.  He kept touching her and kissed her on the neck.  He told her that she would get hurt if she told anybody.  Then he got up and lay down on the other side of the shed.  There were many mattresses on the floor of the shed.  She had thought she was safe because she was only a few metres from her sleeping father and other male relatives and did not think the appellant would do anything.  She did not know what the appellant meant when he said that she knew what would happen to her but he had previously said that he would kill her and hurt her little sister.

21. She described another incident about two weeks after her family moved to the mountain house. The appellant came to stay nearly every weekend, sometimes with C. On one occasion, all the children were upstairs and the adults were drinking in the shed. The appellant kept coming to her room. He came to the entrance about three times before finally coming in and shutting the door. He said not to tell anyone because she knew she would get hurt. He put his hands down her pants and his fingers into her vagina. He then stuck his hands up her shirt, rubbed her breasts and kissed her on the neck and cheek. She had a shower. She did not tell anyone about this incident.

22. She could not remember the details of other incidents at the mountain house. The police reminded her that she had mentioned earlier an incident just before the family moved from the mountain, after which she tried to drown herself. She said that on that occasion the appellant was helping them move out. He was supposed to sleep in the lounge room on a mattress. He came into her room, shut the door and said that if she told anyone she would get hurt. He lay on her bed, stuck his hand down her pants, in her knickers and put his fingers in her vagina. He kept pushing them in and out and held them in there, feeling around inside (count 10). Then he rubbed her belly and breasts and kissed her on the neck (count 11). He said that it was not over just because she was moving away. He returned to the lounge. She cried for about an hour before she ran a bath and tried to drown herself. No-one knew that she had tried to drown herself.

23. The police questioned her about the next incident at her new family home in Brisbane (counts 12 and 13).  She said that the appellant shut the door and lay next to her on her bed in her room.  He said he would hurt the one that she loved most if she said anything.  He was supposed to be sleeping on a mattress in the lounge.  He put his fingers down her knickers and into her vagina, pushing them in and out (count 12) before putting his hand up her shirt and rubbing her belly and breasts (count 13).  He kissed her on the face and again said that if she told he would hurt the one she loved the most.  She understood he was referring to her little sister, N.  He stood over her bed and stared at her for a couple of seconds before leaving.  She just lay there.

24. The police asked her to explain how he kissed her on the face. She said that he was on top of her kissing her on the lips and cheeks and then the forehead and neck. He was facing down with his body weight on her. The police asked whether he had ever attempted to put his penis in her vagina. She responded affirmatively. This occurred on the same occasion when the appellant was on top of her and kissing her. She was crying. He told her to stop crying and to harden up. Before he got off, he pulled down his shorts and jocks and told her to pull down her pants. She did not and tried not to look at him. As he went to get to on top of her, he heard the toilet flush. He panicked, quickly got off and pulled up his pants (count 14). He told her that if she told anybody he would hurt the one she loved the most and stood there looking at her for a couple of seconds before he left.

25. She confirmed that later that week, when SP's sister, the complainant's father and the appellant were drinking under the house, she told SP everything that the appellant had done. SP became really upset and angry. She told SP how the appellant had come into her room, put his fingers in her vagina and touched and kissed her.

26. In her evidence-in-chief at trial, by which time she was 19, she agreed she did not give the appellant permission to touch her on or put his fingers into her vagina. She did not consent to him touching her in a sexual way on any occasion. When he put his fingers in her vagina, she did not say anything because she was scared by his threats.

27. The first time he touched her (counts 2 and 3), she went upstairs at Aunty J's home but the door was locked. Aunty J was not very nice to her at that time but she was unsure why the door was locked. She often asked her mother if she could stay at places where the appellant was also staying or at the appellant's family home because he told her to. She agreed that when the appellant was staying at her family home in suburban Brisbane whilst he completed a security course with her father, he would come into her room every night, shut the door, lie next to her, put his hands up her shirt and feel her breasts and stomach before putting his hands in her pants and his fingers in her vagina.

28. She could not really remember what she told SP. She basically said that he would come into her room and touch her inappropriately. The appellant continued to abuse her after she spoke to SP.

29. She agreed she told her friend, JJ, at school in the coastal area because JJ had told her that someone had been raping JJ. The complainant then told JJ about her situation. She could not remember the exact words but she said that her cousin would come into her room and touch her; that he would put his fingers in her vagina. She did not remember what else she told JJ.

30. She did not remember the circumstances surrounding her conversation with MA about the appellant, but she remembered telling her about his conduct. She was not 100 per cent sure but she thought they communicated over the internet.

31. Her neighbour in the coastal area, E, told her that E's step-father had raped E when she was a child. The complainant then told E that the appellant would put his hands in her pants and touch her and put his fingers in her vagina and threaten her.

32. She was cross-examined over two days with the transcription of the questioning covering about 111 pages. The cross-examination was often confusing and difficult to follow, both for the complainant and for readers of the transcript. She denied that she had made false allegations against the appellant. She maintained that the offences occurred as she had outlined to police.

33. She explained that when she used the word "raped" to police in her first 2009 interview,^[10] she was unsure of its meaning; she thought it meant sexual touching.  The abuse commenced when she was 12 years old and in grade 8 in 2006, not in 2007; she was mistaken when she told police it was 2007.  Her parents, who were in Alice Springs, told her that she had to stay at Aunty J's home.  Her brothers stayed at the appellant's family home.  When the appellant took her home at about 7.00 pm (on the occasion relating to counts 2 and 3), the upstairs doors were locked and the lights were out even though her sister, W, Aunty J's son and perhaps others were inside.  She knocked on the front door but could not raise anyone.  She remained downstairs all night and did not try to go upstairs again.  She did not get along with Aunty J.  The downstairs area was open plan and anyone could walk in.  When she said the appellant started to rape her, she meant that he lay on top of her with his clothes on and felt her.  His clothes were on and his penis was touching her vagina and he was going up and down.  She agreed she did not tell this to the police in any of the three interviews.^[11]  Although four of her brothers had been at the appellant's family home that day, she could not remember whether she told them she was leaving with the appellant.  She returned to Aunty J's home because she had been in trouble previously with her parents for staying at the appellant's family home when she should have been staying with Aunty J.  She told police that "We, I went upstairs".^[12]  She clarified that only she went upstairs; the appellant did not.  She did not scream out for anyone when no-one answered her knocks on the door.  After the incident, the appellant returned to his own bed.  She was not sure how long he was there; he was not there in the morning.  She was not injured and did not tell anyone about it, even after he left.

34. Later in cross-examination, she said that she had received a phone call while at the appellant's family home from Aunty J telling her to come home. She thought Aunty J's house would be unlocked because she asked her to leave it unlocked.  The appellant drove her home.  She asked him to stay over because she was too afraid to sleep under the house by herself.  This was the first time she had told anyone that Aunty J had told her to come home that evening.

35. When cross-examined about counts 10 and 11 which she said occurred in the week before her family moved out of the mountain house, she said she was sharing a room with her foster sister, R, who was then aged about six or seven.  C was not there and the appellant slept in the lounge room.  Other adults and about seven or eight children were present in the one-level home.  The appellant put his hands in her pants and his fingers into her vagina.  She did not tell her mother that she tried to drown herself after this incident until the day before she first spoke to police.  She did not tell her parents about the abuse until a few days before she first spoke to police.  In her third police interview, she said that she did not recall this episode in detail.  The police reminded her that in her first police interview she said that the last incident at the mountain house occurred in the week the family was moving out.  After that incident, she lay in her bed crying for about an hour.  She then filled the bath tub in the middle of the night.  The bathroom was next to her parents' room.  She did not think anyone knew she was having a bath as they were all asleep.  She had a bath after one episode of abuse and a shower after another episode of abuse, but she could not remember which was which.  On one occasion she washed her pants in the sink to remove blood stains.

36. When cross-examined about the first uncharged incident at the appellant's family home, she agreed she sometimes stayed in the room of the appellant's sister, T, but not every time she stayed over. On as many as 10 occasions she stayed in the appellant's room which he shared with C and their baby. The appellant's mother did not make her sleep in T's room. She agreed to sleep in the appellant's room because she was scared of him and he said she had to. His parents and others were present in the home on these occasions. She agreed that on one version she gave police she said the appellant walked into the room and lay down next to her. On another version, she said he was sleeping with C, woke up and came to the single bed where she was sleeping and then abused her. This was a mistake. He forcefully put at least two and possibly three fingers in her vagina. She did not retaliate although it was painful and she was not physically injured. She was crying and upset but she was careful not to wake anyone, including C who was only a metre or two away.

37. She re-affirmed her statement to police about the next uncharged incident at the appellant's family home. She obtained her mother's permission to stay over that night. Her mother and many others were present in the house. She stayed over at his family home on more than two or three occasions during the period she was living at Aunty J's house and she did not always sleep in T's room. She agreed the appellant sexually abused her in his family home about 10 times. Each episode was basically the same but she could not give a detailed account of any one episode.

38. She agreed that JJ left the coastal area where they had been at high school together a few months after they spoke about the appellant's conduct. They did not have contact again until May 2012 when JJ contacted her via Facebook after the police had asked JJ to provide a statement. JJ wrote:

"I remember I had to make a statement just before I left, but I was already gone.  Can you give me a quick rundown with what happened again?"^[13] 

The complainant responded:

"Yeah, didn't really think you'd remember 'cause it's been like two years since I told you what had happened.  All I basically said to you was that whilst living in Brisbane my cousin used to sneak into my room at night while everyone else was asleep and rape me and molest me and threaten to kill – hurt me or one of my close family members if I was ever to tell anyone.  He got me so afraid of him that I W-A-D suicide and attempted [suicide] twice, one by drowning myself and the other on overdosing on medication."^[14]

39. The complainant agreed that she did not tell police about any second suicide attempt even though it occurred before she spoke to them. She took pills prescribed for her foster siblings, "heaps of them."^[15]  The medication made her feel sick but otherwise had no effect.  She did not seek medical attention or tell anybody in the family.  On 2 May 2012, JJ contacted her in these terms:

"Okay. Give me some details. How old were you when he was doing this to you? Sorry for getting into it, but need to know what I'm talking about."^[16]

The complainant responded: "I was in year 8."^[17]

40. The complainant in cross-examination agreed she used "Bebo" to communicate with her friend MA on the internet. On 2 August 2009, MA sent the following message: "Hey, … did you get fuck'n raped and did it go on for four years or was it just four years ago?"^[18]  The complainant responded:

"Yeah, I did get raped by my own fucking cousin.  I moved to Brizzy four years ago and that's when it all started and it only just stopped this year 'cause we moved to [H] and he lives in Brisbane and now my parents know.  Can my life get any worse?  Fuck."^[19]

41. The complainant could not recall if they had previously discussed the appellant's conduct. The appellant's barrister suggested that around this time she also told MA that she should not have told her neighbour, E, about what had happened because E told the complainant's parents.  The complainant responded that she probably did say this but she could not remember.

42. In re-examination, she agreed that she had once tried to commit suicide by taking "heaps of pills"^[20] which she explained was about 10 pills.  She did not really want to speak to the police about the appellant.  She was "upset, bringing it all back up."^[21]  On each subsequent occasion when police interviewed her, it became "harder and harder to talk about it."^[22]  At the end of the first interview, when they asked her if there was anything else she could tell them, she said "no" because she had had enough and wanted to leave.^[23]

43. She agreed that she had not previously told anyone that she was scared of being downstairs alone and had asked the appellant to stay over at Aunty J's home. This was because, until then, no-one had asked her this. Although she told SP about the appellant's abuse, she did not tell her parents because she was frightened about her father's reaction and did not want him to do something to make matters worse. She thought he may physically confront the appellant. She was concerned that people would take sides and split the family. When she told JJ, she (JJ) said that she (JJ) had been sexually assaulted and abused. After her neighbour, E, had "accidentally"^[24] told the complainant's parents about the abuse, her mother confronted the complainant.  She cried and did not know what to say.  Her mother asked when and where it happened and said she was sorry that she could not stop it.  She told her mother it happened throughout the time their family lived in south-east Queensland and in each of their homes. 

44. Although she said in cross-examination that sometimes the appellant used three fingers when touching her in the vagina, she did not see how many fingers he used. It felt different, however, from the other times. Sometimes he caused her a great deal of vaginal pain and his touching was forceful.

The evidence of family members

45. The complainant's Aunty J, who was also the appellant's Aunty, gave evidence. The complainant's family lived with her in her home for two periods. The first was when the complainant's family moved from Alice Springs at the end of 2005 and the beginning of 2006.  The complainant's mother and her children and foster children lived downstairs.  The complainant's father was there sometimes but at other times he was working in Alice Springs.  She vaguely recalled a time when the complainant's mother went to Alice Springs.  She thought she took her young foster children with her.  Aunty J and her family slept upstairs.  Only very rarely did any members of the complainant's family sleep upstairs. 

46. During this period the appellant was in a relationship with C. The appellant and C lived about four or five kilometres away and often visited.  He never slept over at her place without C; if they came over they slept upstairs in her son's room.  Sometimes the complainant and her siblings visited the appellant's family home but they did not stay overnight during the week.  Sometimes they stayed overnight on weekends when they were visiting with their parents.  She could not recall the complainant or her siblings staying overnight in the appellant's family home without their parents.  She was unsure whether she once rang the appellant's family home between 7.00 and 8.00 pm to tell the complainant to return home but she probably did.  On that occasion, the complainant came home and saw her.  She did not lock the house upstairs to prevent the complainant from entering.  She would not have gone to bed until she knew the complainant was safely home.  She normally went to bed about 11.00 pm or midnight and the house lights and TV were usually on until then.  At the time, her husband worked afternoon shifts, returning at about 2.00 am.  Her son, who was about 13 or 14, and her young adult daughter and baby were also living upstairs.

47. The complainant's sister, W, was aged 17 at trial. She confirmed that, for about three months when her father was working in Alice Springs, she and the rest of the family, including the complainant, lived with Aunty J.  Their large family always slept and ate downstairs.  On school nights, she would go to bed at about 8.00 or 8.30 pm, but later on a weekend.  On occasions, they visited the appellant's family home where the appellant, C, and their child also lived and sometimes they stayed overnight.  She slept in the room of the appellant's sister, T.  After the family moved to the mountain, she shared a room at one time with the complainant, at another time with an older brother, and she thought, at another time she had her own room.

48. The complainant's mother gave evidence that the complainant was the third of her seven biological children. She also cared for a number of foster children. Two young foster children living with the family in 2009 had health problems for which they required medication. The family lived in Alice Springs until December 2005.  Her husband and eldest daughter, D, remained in Alice Springs where her husband was working.  The mother and the rest of the family moved to Brisbane.  They lived with her husband's sister, Aunty J, before moving to the mountain where they lived between March 2006 and March 2007.  Her husband came to Brisbane to help them find the mountain accommodation and then returned to Alice Springs.  One weekend in 2006, she and her second daughter, R, went to Alice Springs for the weekend. 

49. The appellant is her husband's nephew. Whilst her family was living with Aunty J they had almost daily contact with the appellant and his family. He would stay over at Aunty J's home regularly, about once a fortnight. Her children sometimes stayed over at the appellant's family home before they moved to the mountain. The appellant helped them move. The complainant spent a lot of time there and sometimes stayed over without her siblings, probably before her family moved to the mountain. Other members of the extended family lived from time to time in the mountain house. She produced a diagram of the mountain house which depicted four to five bedrooms and a separate garage. A separate shed was built during the tenancy which they used as a family room and for occasional gatherings. The appellant was present on one occasion when a number of people watched movies in the shed. On that occasion, she slept in her room and was unaware of the other sleeping arrangements.

50. She thought the complainant and W shared a room at the mountain house but the girls swapped around and she was unsure of their arrangements. The appellant visited for a few days from time to time; he came to the mountain house more than other relatives. He would often stay overnight on a mattress in the lounge room because it was a long drive back to Brisbane.

51. When the family moved to Brisbane, the complainant at first had her own room downstairs but later she had her own room upstairs.  When the appellant stayed over there, he "just found a bed wherever, but when he [came] over for the [security] course he was sleeping on the mattress in the boys' room."^[25]

52. A few days before the complainant spoke to police, E told the mother about E's conversation with the complainant.  The mother spoke to the complainant in her room and told her that she knew what the appellant had done.  The complainant cried and said that he had touched her.  The mother asked how long it had been happening.  She said it started when the family first moved to Brisbane.  The mother asked if he "put his thing inside of her."^[26]  She said yes, "he put it in a little bit", she thought, when they were at the mountain house.^[27]  The mother said she would not let the appellant hurt the complainant anymore.

53. The complainant's father gave evidence that his family moved to Brisbane from Alice Springs and lived with his half-sister, Aunty J, until they arranged accommodation on the mountain.  While he was in Alice Springs, his wife and their daughter, R, visited on the weekend of a big football match between the Penrith Panthers and the Newcastle Knights.

54. The appellant stayed over about once a week when they lived on the mountain and would generally sleep on a mattress on the floor, either in the lounge room or the boys' room. After the family moved to Brisbane, the appellant also stayed over frequently, particularly when he and the appellant were completing a security course. He slept on a mattress in the boys' sleepout.

The preliminary complaint evidence

55. The complainant's cousin, SP, gave evidence which was pre-recorded in December 2011. It was played at the trial, together with a DVD of her police interview. She explained that when she spoke to police she knew the complainant had already told them about the appellant's conduct. The complainant first told her about the alleged abuse when they were in the complainant's room in her family home in Brisbane, saying, "I'll tell you something but if you tell anyone I'll kill myself and it'll be your fault."^[28]  SP responded, "Just tell me."^[29]  The complainant said that the appellant:

"raped her once and then all the other times he fingered her and was touching her and stuff like that later on since she was 12 and it was happening when he was in Alice Springs and at [Aunty J's], and [Aunty J] locked her out of the house and she had to sleep downstairs, and at [the appellant's] mum and dad's place in the room when [C] was there asleep basically."^[30]

56. They had this conversation towards the end of 2008 and talked more about it over the ensuing days. Later when the complainant's family moved to the coastal area closer to SP's family, they spoke of it again. After the complainant told her about the appellant's conduct, she sometimes saw him at the complainant's family home in Brisbane but she did not see them sitting or speaking together.  She would have been looking out for any improper sexual behaviour.  The police did not interview her until August 2009.

57. The complainant's friend, JJ, gave evidence that she met the complainant at school after the complainant had moved to the coastal area. They were both in year 11 towards the end of 2009 when the complainant told her during a school lunch break that her cousin raped her in year 8 when she was living in Brisbane.  She used the words "sexually assaulted" and "raped".^[31]  JJ was empathetic because she had been in a similar predicament.  The complainant said that the appellant had threatened to kill her if she ever spoke about it to anyone and she was suicidal.  She did not want to go through it anymore.  JJ was unsure, but she thought the complainant told her about her sexual abuse before she told the complainant that she (JJ) also had been sexually abused.

58. In cross-examination, JJ agreed that she only had a very faint recollection of their conversation. She agreed she made contact with the complainant via Facebook before she gave her statement to police. She texted the complainant but did not get a reply as the complainant was out of credit. JJ also phoned and spoke to her about this before JJ gave her statement to police.

59. MA gave evidence that she met the complainant when they were both in grade 10 at school in the coastal area. She was friends with both the complainant and JJ. In August 2009, the complainant sent her a message on "Bebo". She was upset that her parents had found out about what had happened to her through her neighbour. She said that she had been raped. MA was pretty sure she said it happened in Brisbane where she used to live.  The conversation set out at [40] of these reasons was preceded by a message about one hour earlier, which she was unable to find on her computer.  Although she told the police about this, they did not take her computer to try to locate the earlier message.

60. E, a neighbour of the complainant and her family in 2009, gave evidence. In about late July or early August the complainant told her that she was glad they had moved from Brisbane to the coastal area.  E asked why.  She said that her cousin had been "doing stuff to her … he had been sticking his fingers inside of her."^[32]  Her Aunty J had locked her out and that was the first time that it all started.  She did not give other details.  A few weeks later, E told the complainant's father.  In cross-examination, she said that she told the complainant that she herself had been sexually abused.  She was unsure whether she said this before or after the complainant told her about the appellant's conduct.  She was unsure if the complainant made her promise not to tell the complainant's parents.  She told the complainant to tell them, and over the next few weeks, asked if she had.  The complainant always said the time was not right and she did not feel comfortable.  E told the complainant's father without first telling the complainant that she would do so. 

The medical evidence

61. Dr Robert Norelli, an obstetrician/gynaecologist of about 18 years experience, gave evidence by telephone as he was then working in the USA.  He undertook a sexual assault examination of the complainant in September 2009.  He was not given any details of the allegations.  His examination showed that her hymenal ring was intact and had not been overly distended as, for example, in child birth.  The amount or degree of vaginal penetration which may cause the hymenal ring to tear or be overly extended is highly variable between individuals.  The principal factor is skin elasticity.  Typically around the age of 12 or 13 there is "quite a bit of elasticity".^[33]  The doctor was informed of the complainant's allegations.  His observations in the examination were possibly consistent with and not contrary to the allegations.  The complainant's vagina may have been digitally penetrated on occasions by up to three fingers over a period of approximately three years between the ages of 12 and 15.  Her complaints of pain during these penetrations could have been caused by something other than a damaged hymen.  Any bleeding following penetration could have been caused by something other than a damaged hymen, for example, damage to the vaginal side walls or bleeding from the cervix and uterus, including menstrual-type bleeding.

62. He performed a visual internal examination and noted that the side walls of the vagina and cervix appeared normal. In taking vaginal samples, he noticed that the hymenal ring was resistant enough to require him, for the complainant's comfort, to use a smaller speculum instead of the routine adult speculum.

63. A 12 year old virginal child could be subjected to digital penetration commencing with one finger and with gradual increases in the diameter of the vaginal dilation resulting in multiple and repetitive shallow tear injuries which could heal in a relatively invisible manner so that the hymen looked normal.  This could cause bleeding.  If so, long term visual evidence of the penetration was not inevitable.  Certainly, there was no obvious scar tissue such as might be seen after a violent sexual assault.  It was possible, however, that the complainant was sexually abused without any resulting scarring.  It was also possible that she was not sexually abused and that is why there was no sign of scarring.  He emphasised that it was possible for the complainant to have an intact hymenal ring after relatively slow chronic sexual abuse involving episodes of pain and some small amounts of blood spotting.  He agreed he did not see any scarring on the vaginal walls.  Penetration by a finger with a sharp fingernail could have caused bleeding sufficient to stain undergarments.

Other relevant evidence

64. C gave evidence that she had been the appellant's partner on and off for 10 or 11 years.  They were together from December 2005 until August 2007.  They had a child who was aged one, turning two, in 2006.  She has known the complainant and her family since they moved from Alice Springs in about 2005.  She recalled when the complainant's family was staying with Aunty J before they moved to the mountain.  The complainant sometimes visited the appellant's family home where she and the appellant and their child were living.  On one or two occasions, the complainant stayed overnight and slept with the appellant's little sister.  C and the appellant visited the complainant's family on the mountain and occasionally stayed overnight.  The appellant did not stay over there without her.  She assisted the complainant's family move into the mountain house and she and the appellant stayed there that night in the bedroom of one of the complainant's brothers.

65. In cross-examination, she said that the appellant's mother did not allow anybody to sleep in the room C shared with the appellant and their son. She agreed that the appellant assisted the complainant's family move out of the mountain house and on that occasion she was not there.

66. Mr Graham Neumann, the owner of the mountain house which the complainant's family rented from March 2006 to March 2007, gave evidence. He arranged for a 6m x 12m shed to be built there.  It was completed on 9 November 2006, with lighting and electricity provided by 2 February 2007.  Prior to February, the power came through extension cords from outlets in the house.

Admissions

67. The appellant admitted the dates: of the birth of the appellant and complainant; on which the protagonists resided at the various addresses; the weekend of the significant national rugby league game in Alice Springs when the complainant's mother was there; and when he undertook security training.

The defence case

68. The appellant gave evidence denying ever sexually touching the complainant or participating in any sexually inappropriate behaviour with her. He could not recall any occasion when he dropped her at Aunty J's home between 7.00 and 8.00 pm when the house was locked and the lights were off.

69. The complainant and her siblings would visit his parents' home from time to time on weekends, perhaps once, twice or maybe three times, but never on school nights. She always slept in the room of his sister, T. He shared a room with C and their baby. The complainant never slept in his room. The sleeping arrangements were always the girls in one room and the boys in another.

70. He recalled helping move the complainant's family to the mountain house. C also assisted and they stayed over that night with their baby. He never went into the complainant's bedroom at night time. He regularly visited the mountain house and on most occasions, he returned home the same day. He stayed over on about four or five occasions, but always with C and their baby. He attended a movie night in the big shed in about December 2006. Power came through extension cords from the house or the car port. He was not sure if C and their baby were there. He did not think he had any alcohol; it was a movie night with the kids. When he subsequently stayed in the complainant's family home in Brisbane, he was pretty sure he slept in the lounge room on a mattress. 

71. In his relatively brief cross-examination, he consistently denied the complainant's allegations.

72. The appellant's mother gave evidence that, during the time the complainant's family were living at Aunty J's home, she had no recollection of the appellant ever spending a night away from her home. He was always at his family home with C. The complainant and her siblings would sometimes come over during the day. The complainant's brothers sometimes slept over on the weekend and the girls probably slept over two or three times. She invariably decided where the children would sleep in the four bedroom home. If the boys were staying over, they would sleep in her son, E's, room. If W and the complainant slept over, they would sleep in her daughter, T's, room. There were no exceptions. She always had the boys in one room and the girls in the other. She never arranged for the complainant to sleep in the appellant's room. She would not allow that to happen.

Alternative Charges

73. On the fifth day of the trial, the prosecutor stated, in the absence of the jury, that in light of the cross-examination of the complainant, consent was a relevant issue.  The alternative count of indecent treatment should be left to the jury on each count of rape.  Defence counsel agreed with that course.^[34]

Count 14

74. The prosecutor also stated that she did not consider the complainant's evidence was sufficient to support the charge of attempted rape and intimated that she would endorse the indictment that the Crown would not proceed further upon count 14.  She did so at the close of the prosecution case.

The judge's relevant directions to the jury

75. The judge's directions to the jury as to consent were consistent with the course earlier agreed upon by counsel. Her Honour reminded them that the complainant gave evidence that she did not say anything to the appellant before or during the incidents and did not tell him not to do the things that she alleged he did. The judge also reminded the jury of the age difference and relationship between the appellant and the complainant; and that she gave evidence that she did not give him permission to sexually touch her and was frightened of him because of his threats. On the other hand, there was also evidence that she asked her mother if she could stay the night at the appellant's family home after she claimed the sexual abuse had been continuing for some time. Further, during episodes of sexual abuse, she did not call out to other adults who were nearby, including on the movie night when her father was sleeping in close proximity.

76. The judge instructed the jury to consider each charge separately by evaluating the evidence relating to that charge in deciding whether they were satisfied beyond reasonable doubt that the prosecution had proved the elements of each charge. They were required to return separate verdicts for each charge. Her Honour continued:

"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, any inconsistencies or for any other reasons, that must be taken into account by you in assessing the truthfulness and reliability of her evidence generally."^[35]

77. Later, her Honour explained that the appellant had been charged with only 12 specific offences, leaving aside the all-encompassing offence of maintaining a sexual relationship with a child under 16 (count 1).  Her Honour continued:

"… You must consider each of those 12 charges separately. If you find you have a reasonable doubt about an essential element of one of the charges, for example, or all of the charges you must find the [appellant] not guilty of that particular charge or charges. 

In addition to the evidence of the complainant concerning those 12 offences, you've also heard evidence from her of other alleged incidents involving sexual activity. As you've heard and seen, the complainant hasn't been specific about when some of those activities occurred or in what circumstances and you can only use this evidence if you accept it beyond reasonable doubt.

If you do not accept that other evidence then that finding will bear upon whether or not you accept the complainant's evidence relating to the specific charges before you beyond reasonable doubt."^[36]

78. The judge instructed the jury to consider any inconsistencies in the complainant's evidence in assessing her credibility.^[37]  They must also consider the complainant's delay in bringing the complaint and its effect on the appellant's ability to meet the allegations.^[38]  Her Honour explained that people make false complaints or tell lies about things for many reasons or for no reason at all.  The jury must not ask themselves why the complainant would make up the allegations if they did not happen.  It was for the prosecution to satisfy them that the complainant was telling the truth because this was the prosecution's burden, not the appellant's.^[39]

79. The court adjourned on the sixth day of the trial and the judge allowed the jury to return home overnight. The next morning the court reconvened and the judge read out this note from the jury:

"Can your Honour please clarify what sexual contact, if any, a minor under the age of 16 years is considered capable of consenting to, particularly in the context of the two differing definitions of indecent dealing and rape consent."^[40]

80. The judge gave the following direction in respect of count 1:

"… the prosecution must prove that there was an ongoing relationship of a sexual nature between the [appellant] and the complainant and that there must be some continuity or habituality about that conduct.

In this case, as well as those specific counts, that is counts 2, 3 to 13 the prosecution relies on the evidence of [the complainant] of other alleged acts of a sexual nature, which you've heard about, to establish that the [appellant] maintained a  sexual relationship with her. The complainant has not been able to [be] as specific about when or under what circumstances these other acts occurred.

This is what I forgot to tell you yesterday. If you have a doubt about the specific offences, that's count 2 through to 13, then you should only convict the [appellant] on the basis of the evidence of those other unspecified acts. If after carefully scrutinising the evidence of [the complainant] you are satisfied beyond a reasonable doubt that the [appellant] did those acts during the period alleged in the indictment. So you must scrutinise the evidence with care.

A reasonable doubt with respect to the complainant's evidence on any specific count, that's on any of the counts 2 through to 13, should be taken into account and considered by you in your assessment of her credibility generally. However, it remains a matter for you as to what evidence you accept and what evidence you reject" (errors in original).^[41]

81. The judge then summarised at considerable length the competing contentions of the prosecution and the defence on each count.

82. Her Honour next dealt with the jury's earlier question in the context of explaining how her associate would take the verdicts, stating:

"… In relation to the rape offences, the 2, 4, 6, 8, 10, 12, I'm going to give you an example of how you would go about considering each of these verdicts.

Let's take count 2, the rape, the insertion of the fingers at Aunt [J's] house on the first occasion when [the complainant] said she was locked out. You look at the evidence. If you are not satisfied beyond reasonable doubt that this incident occurred then you would find [the appellant] not guilty of count 2, that's the end of the matter, and you move on to count 3, the indecent dealing that occurred on the same occasion.

The next scenario is this: if you are satisfied beyond reasonable doubt that [the appellant] did put his fingers into her vagina on this occasion, the first occasion at Aunt [J's], and you are also satisfied beyond a reasonable doubt that the complainant did not consent, was not giving her consent, then - and you're satisfied of all of the other elements of rape - then you find [the appellant] guilty of that offence and you don't have to consider anything further, you move on to count 3, the touching of the breast.

If, however, you are satisfied beyond reasonable doubt that [the appellant] did put his fingers in her vagina on this occasion at Aunt [J's] house but you have a reasonable doubt as to whether or not the complainant consented to him doing so, then you must find him not guilty of rape because you haven't been satisfied beyond reasonable doubt by the Prosecution that the complainant did not consent.

And then you go on to consider this alternative: is he guilty of indecently dealing with her? That is what are the elements of that that I've told you? That there was a touching; that is the fingers in the vagina. Secondly, that it was somebody who was under 16. Thirdly, that it was indecent, and fourthly, that it was unlawful.

So, for example, someone who's 20 and they consent to someone putting their fingers - having fingers put in their vagina, it's not an offence. All right. If you're under 16 it is an offence even though you consent. All right. But for rape to be proven the Prosecution have to prove that there was an absence of consent beyond a reasonable doubt.

Now, I'll just re-define consent to you, as I told you earlier. Consent is defined to mean consent freely and voluntarily given by a person with the capacity to give consent.

Now, I know I mentioned the words there cognitive capacity to give consent. Now, I don't know if that's what was concerning you, but let me tell you this: for example, a person who's asleep can't give consent because they're not conscious to do so, so that's an example of someone who doesn't have the cognitive capacity to.

Someone who is seriously disabled, intellectually, disabled may not have - and there'd be evidence about that - may not have the capacity to consent. A very young child - let's say, for example, 4 or 5, doesn't - may not have the capacity to consent, but under our law a person under 16 but over the age of 12 does have the capacity to consent.

So I'll just re-give you the definition. Consent means consent freely given and voluntarily given by a person with the cognitive capacity to give consent. Our law also says that a person's consent to an act is not freely and voluntarily given if it is obtained by force, by threats or intimidation, by fear of bodily harm, or by exercise of authority.

Now, I'm not quite if that's the question you were asking of if I've answered it. No doubt you'll let me know with another note if I haven't clarified it … (errors in original).^[42]

83. The jury retired to consider their verdicts at 11.17 am on day seven of the trial. The court re-convened at 3.18 pm to deal with jury requests for a redirection which did not directly concern their earlier question about consent. They wished to hear the complainant's evidence about counts 2 and 3 and counts 12 and 13.^[43]  As it took some time to identify the relevant passages of evidence, it was not possible to give the redirection immediately and at 4.48 pm, the judge allowed the jury to return home.  The court reconvened at 9.34 am in the absence of the jury when the judge informed counsel that the jury had sent the following note: "After further discussion yesterday and this morning, we agree that we no longer wish to hear the transcript read to us this morning.  We apologise to your Honour for any inconvenience our request may have caused."^[44]  With counsel's encouragement, the judge informed the jury through the bailiff that the court had received their note and they should continue with their deliberations.

84. The court next reconvened at 1.58 pm when the bailiff stated that the jury had reached their verdicts.

The judge's post-verdict observations

85. After taking the verdicts, the experienced judge noted that:

"it's very clear what they have done is they've very carefully made sure in relation to each incident that they are satisfied that all the elements have been proven and that it … [the complainant] wasn't wrong with the incident … when it happened or if it happened in - in the order or the way that she said."^[45]

86. In sentencing, the judge noted that, as the jury had found the appellant not guilty of all offences of digital rape, they must have had a reasonable doubt at least on the issue of whether the complainant consented.^[46]

Are the verdicts inconsistent?

87. The appellant contends that the jury verdicts are inconsistent. The only evidence to support the charges come from the complainant and her evidence as to each count was broadly similar. The jury's not guilty verdicts on counts 2 to 5, 8 and 9, and the not guilty verdicts on the rape aspects of counts 6, 10 and 12 meant that the jury should also have had a doubt about the appellant's guilt on the remaining counts. The not guilty verdicts amounted to an implicit rejection of the complainant's account of the events relied on to support the guilty verdicts. The not guilty verdicts on rape meant that the jury was not satisfied either that she did not consent or that there was digital penetration. If the jury rejected her evidence that she was threatened or digitally penetrated, they could not find her a credible witness on any count. As in Jones v The Queen,^[47] the only reasonable conclusion to be drawn from the verdicts is that the jury were not satisfied beyond reasonable doubt of the truth of the complainant's evidence concerning the events on which the guilty verdicts were based.  This case comes within that category of cases discussed in MacKenzie v The Queen,^[48] where the different jury verdicts represent an affront to logic and common sense, strongly suggesting a compromise of the performance of the jury's duty.  As there was no rational explanation for the differing verdicts, the guilty verdicts must be set aside to prevent a miscarriage of justice.

88. Despite the persuasive contentions mounted by the appellant's counsel, I consider there is some force in the experienced trial judge's post-verdict observations that the jury conscientiously performed their duty and the verdicts are logically explicable.

89. The jury were not compelled to accept the appellant's evidence or that of C and his mother to the effect that the complainant never slept in the appellant's room.

90. The jury found the appellant not guilty of all the counts alleged to have occurred at Aunty J's home. They may well have felt the complainant's evidence was insufficient to convict the appellant on any of these counts in light of the evidence of the complainant's Aunty, mother and sister, W, as to the living and sleeping arrangements at the home at the particularised times. The evidence of the complainant's mother and father also threw some doubt on the accuracy of the complainant's account that the two episodes of offending encompassing counts 2 to 5 occurred over two weekends when her mother was in Alice Springs.  The evidence was compelling that the mother was in Alice Springs for only one weekend.  In light of the way counts 2 to 5 were particularised, the jury, in acquitting the appellant, may have given him the benefit of the doubt on these counts.  This did not mean the jury necessarily must find the complainant an untruthful or unreliable witness generally. 

91. The jury acquitted the appellant on the rape aspects of counts 6, 10 and 12 while convicting of the alternative offence of indecent treatment by placing his fingers in the complainant's vagina and the associated counts of indecent treatment by fondling her breasts (counts 7, 11 and 13). The jury's question about consent manifested their concern about this issue. I do not accept that the jury verdicts on counts 6, 10 and 12 may have been consistent with them having a doubt about digital penetration. On the way this trial was conducted, they could not have convicted of the alternative counts to the rape charges on counts 6, 10 and 12 if in such doubt. As the trial judge noted, the verdicts were consistent with the jury having a reasonable doubt as to whether the complainant did not consent to the penetration. A conscientious jury may have given the appellant the benefit of the doubt as to the element of consent in light of her absence of timely complaint in circumstances where she had every opportunity to do so. This did not mean that the jury could not be satisfied beyond reasonable doubt that these episodes otherwise occurred in the place and manner she described.

92. The not guilty verdicts on counts 8 (rape, alternatively indecent treatment) and 9 (indecent treatment), are even more readily explicable.  The complainant gave evidence that this event occurred after the movie night in the shed not long after the family moved to the mountain in March 2006.  Mr Neumann's evidence clearly established that the shed was not built until very late 2006.  The jury, understandably, may have concluded that the complainant was unreliable as to the timing of this episode and, in light of the way it was particularised, given the appellant the benefit of that doubt.  The fact that she was confused about the date of this episode which occurred when she was 14, almost three years before she made her complaint to police as a 16 year old, did not mean that the jury must conclude she was untruthful and unreliable about other episodes where her evidence was not confused.

93. It is also significant that there was clear evidence that the appellant had the opportunity to commit each offence of which he was convicted. He was at the complainant's family home on the mountain when counts 6 and 7 occurred as he was helping them move there. As to counts 10 and 11, the appellant's partner, C, stated during cross-examination that the appellant, in her absence, helped the complainant's family move from the mountain. Similarly, in respect of counts 12 and 13, the evidence was unambiguous that the appellant slept over at the complainant's family home in Brisbane whilst completing a security course with the complainant's father.  The verdicts are consistent with the jury accepting the complainant's evidence, beyond reasonable doubt, other than as to absence of consent, when there was no other independent evidence undermining her account.  In taking this approach, the jury assiduously followed the judge's directions to give the appellant the benefit of any reasonable doubt.

94. Despite the acquittals, the guilty verdicts on counts 6, 7, 10, 11, 12 and 13 were more than sufficient to support the guilty verdict on count 1 (maintaining a sexual relationship with a child).

95. After carefully considering all the evidence, the course of the trial and the judge's directions to the jury, and despite the persuasive submissions of the appellant's counsel, I consider that the differing jury verdicts in this case are able to be logically reconciled, consistent with MacKenzie.  For the reasons I have given, I am persuaded the verdicts were reached after the jury conscientiously followed the judge's instructions to consider each count separately and to determine whether the prosecution had established the elements of the offence particularised in each count beyond reasonable doubt.  The differing verdicts are not an affront to logic and common sense.  On the contrary, they suggest that the members of the jury diligently performed their onerous duty.  This ground of appeal is not made out.

The impugned jury direction

96. The appellant contends that the judge's directions set out at [76], [77] and [80] of these reasons did not adequately warn the jury that an assessment of doubt as to the appellant's evidence on some counts may adversely affect their consideration of her evidence on other counts.  Her Honour should have directed the jury that their general assessment of the complainant as a witness was relevant to all counts.  If they were not sufficiently confident of her evidence to convict in respect of one count, they must consider why they had a reasonable doubt about part of her evidence and whether this affected the way they assessed the rest of her evidence.  That is, they must consider whether their doubt about that aspect of her evidence causes them to have a reasonable doubt about the part of her evidence relevant to any other count.  This direction is consistent with 34.2 of the Bench Book.

97. It is noteworthy that the experienced defence counsel at trial did not seek such a redirection. The rationale for directions of this kind identified in R v Markuleski,^[49] is to address the unfairness that may arise where a jury's finding of not guilty on one count is logically apt to damage the complainant's credibility on another: R v Ford.^[50]  Markuleski and the many cases which cite it make clear that the appropriate directions to a jury concerning a complainant's credibility on one count and its potential effect on his or her credibility generally will depend on the evidence in each case.^[51]  The direction now sought by the appellant's counsel was that given in R v JK^[52] and approved by this Court in that case and in R v JL.^[53]  The appellant has not persuaded me that the judge's directions to the jury which the appellant seeks to impugn were in any way inadequate or inappropriate in the circumstances.  The direction now sought was not mandatory.

98. But in any case, for the reasons I have given in rejecting the appellant's contention that the verdicts are inconsistent, this was not a case where the jury's doubt about the precision and reliability of the complainant's evidence as to one particularised count or uncharged act would necessarily cause them to have a doubt about her reliability on another count relating to a separate episode. Although this case concerned only one complainant, she gave evidence of six separate episodes of offending in three discrete locations, as well as uncharged acts in a fourth location. The jury could accept her evidence as to some episodes but reject it as to others. The judge gave them appropriate directions as to how to use any doubts about her evidence on the counts on which they acquitted in assessing her general credibility.

99. The appellant certainly has not established that the judge's directions, or her Honour's omission to give the direction of the kind given in JK, has resulted in a miscarriage of justice.  This ground of appeal is not made out.

Are the guilty verdicts unreasonable?

100. In contending that the guilty verdicts are unreasonable and not supported by the evidence,^[54] the appellant emphasised the inconsistencies between the complainant's evidence and that of the preliminary complaint witnesses.  They did not give evidence that she complained about any offending at the mountain house.  This directly concerns the guilty verdicts on counts 6, 7, 10 and 11.  The complainant told some of them that she was raped.  She told her mother the appellant had partially inserted his penis in her vagina.  This was inconsistent with the complainant's evidence.

101. The appellant also emphasised that the complainant did not give any account of the episode charged in counts 10 and 11 until prompted by police in her second statement. This is particularly surprising as she claimed that she afterwards attempted to kill herself by drowning in the bath tub. There were many people present in the mountain house and later in her family home in Brisbane (counts 12 and 13) when she claimed the appellant sexually abused her.  She could easily have complained to them had the offending actually occurred.  In any case, the appellant was unlikely to have committed the offences in circumstances where there were so many people around.  When the whole of the evidence is reviewed, the appellant contends that the jury should have had a reasonable doubt as to the appellant's guilt on all counts on which he was convicted.

102. As to the complainant's use of the term "rape" to some preliminary complaint witnesses, I note that in cross-examination, she said that when she made the complaint to SP, she was unsure what "rape" meant. She thought it meant sexual touching.^[55]  As to the inconsistencies between the complainant's account and the evidence of SP, JJ and MA as to what she told them, all four were young and were not asked to recall details of these conversations for some considerable time.  None made a contemporaneous record.  It is unsurprising that there were some inconsistencies.  E's evidence of her complaint shortly before the complainant spoke to police was consistent with the complainant's evidence.  It is true that the complainant's mother said the complainant told her that she thought the appellant put "his thing inside her" at the mountain house.^[56]  Although referring to a different location, this complaint was consistent particularly with the complainant's evidence that the appellant simulated sexual intercourse whilst they were both fully clothed at Aunty J's and which the complainant described as "rape".^[57]  Bearing in mind the long delay between the events occurring and the complaint, and the age of the complainant at the time of both the alleged abuse and the complaints, I am unpersuaded that the preliminary complaint evidence makes the guilty verdicts unreasonable.

103. The appellant described two ineffectual suicide attempts after episodes of the appellant's sexual abuse. In one, she tried to drown herself by holding her head underwater in the bath late at night. She suffered no physical effects. In the other, she took about 10 pills of prescribed medication for her young foster siblings who were suffering from epilepsy and other health problems. Apart from feeling sick, she suffered no physical effects. Neither episode was noticed in the busy, chaotic household in which she lived. I am unpersuaded that this evidence, even in combination with her need for prompting about the events concerning counts 10 and 11, makes the guilty verdicts unreasonable.

104. Accepting that the jury was in doubt about whether the complainant did not consent to some or all of the appellant's conduct, they were entitled to find that he threatened her to ensure that she did not tell anyone. He had excellent reasons for not wanting their families or his partner, C, to know of his unlawful, immoral and manipulative conduct with his under-age cousin. The jury were entitled to accept that she did not seek assistance from others during or after the episodes of abuse because she did not want to be the cause of a rift in their close-knit families and was concerned that her father would assault the appellant.

105. Some may consider it implausible that the appellant would be so bold as to commit these offences in such a crowded environment where there could be potential witnesses, and there were none. But on the other hand, just as the family dynamics may have been the reason why the complainant did not seek assistance from others asleep in the various households at the time of the offending, the crowded, noisy households may well have provided a suitable milieu to enable the appellant to offend undetected with those present steadfastly ignoring commonplace night noises and disturbances in an effort to keep to themselves and sleep. I also note that on occasion those to whom she might have looked for protection had been drinking alcohol.

106. The medical evidence^[58] was neutral, helping neither the prosecution nor the defence cases.  It did not make the guilty verdicts unreasonable on the evidence.

107. After carefully reviewing the whole of the evidence and the appellant's contentions on this ground, I am satisfied the jury were entitled to find the complainant was truthful and reliable in her account of the appellant's conduct towards her on the counts on which they convicted. This was so even though they were not satisfied beyond reasonable doubt as to the particularised details of the counts on which they acquitted and that they considered she may have consented to the appellant's conduct. I am persuaded it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on counts 6 (the alternative charge of indecent treatment), 7, 10 (the alternative charge of indecent treatment), 11, 12 (the alternative charge of indecent treatment) and 13. These guilty verdicts were more than sufficient to meet the requirements of s 229B(3) Criminal Code in respect of count 1.  It was therefore also open to the jury on the evidence to be satisfied beyond reasonable doubt of the appellant's guilt on count 1.

108. It follows that this ground of appeal is not made out.

Conclusion

109. As none of the grounds of appeal have been made out, the appeal against conviction must be dismissed.

ORDER:

Appeal against conviction dismissed.

110. FRASER JA: I have had the advantage of reading the reasons for judgment of the President.  I agree with those reasons and with the order proposed by her Honour.

111. WHITE JA: I have read the reasons for judgment of the President and agree with those reasons that the appeal against conviction should be dismissed.