R v GAQ[2013] QCA 309

SUPREME COURT OF QUEENSLAND 

[1] MARGARET McMURDO P:  The appellant was charged with two counts of unlawfully and indecently dealing with his daughter, J, who was under 12 years (counts 1 and 2) and one count of permitting himself to be indecently dealt with by his daughter, who was under 12 years (count 3).  All three counts were charged as having been committed on dates unknown between 1 December 1997 and 14 January 2000.  He pleaded not guilty to all counts.  After a two day jury trial, he was found not guilty on count 1 but convicted on counts 2 and 3.

[2] He has appealed against his conviction on five grounds.  Ground 1 is that the convictions are "unsafe and unsatisfactory and not supportable" by the evidence, that is, that under s 668E(1) Criminal Code 1899 (Qld) the guilty verdicts should be set aside as unreasonable or not supported having regard to the evidence.  Ground 2 is that the verdicts are inconsistent and against the weight of the evidence.  Ground 3 is that the "Longman"[1] direction was inadequate and that it failed to identify for the benefit of the jury any of the circumstances relevant to the evaluation of J's uncorroborated testimony.  Ground 4 is that the trial judge erred in not giving the jury a "Domican"[2] direction; in the alternative, if the evidence of identification was circumstantial, there was a failure to give a "Shepherd"[3] direction.  Ground 5 is that the trial judge did not adequately direct the jury as to the mandatory directions required by s 21AW Evidence Act 1977 (Qld).

[3] At the hearing of the appeal on 29 July 2013, this Court ordered that the appeal be allowed and the convictions quashed but reserved its decision as to whether a retrial should be ordered or whether verdicts of acquittal entered.  The Court indicated that it would give its reasons later.  I joined in those orders as I was satisfied that ground 5 was made out.  It is convenient to begin with a discussion of that ground of appeal.

Non-compliance with s 21AW Evidence Act

[4] The complainant, J, her boyfriend, S, and her younger sister, E, were each an "affected child" under Div 4A Evidence Act.  Each gave pre-recorded evidence under s 21AK Evidence Act.  A judge (not the trial judge) ordered, apparently under s 21AV Evidence Act, that a support person for each affected child witness be present at the recording of that evidence.[4]  When evidence is received in this way, the trial judge is required to give the jury directions as to its use under s 21AW which is in the following terms:

"21AW Instructions to be given to jury

(1)This section applies to a proceeding on indictment if any of the following measures is taken—

(a)an affected child’s evidence is taken in a way provided for under subdivision 3 or 4;

(b)a person is excluded under section 21AU while an affected child gives evidence;

(c)an affected child has a support person under section 21AV while the child gives evidence.

(2)The judicial officer presiding at the proceeding must instruct the jury that—

(a)the measure is a routine practice of the court and that they should not draw any inference as to the defendant’s guilt from it; and

(b)the probative value of the evidence is not increased or decreased because of the measure; and

(c)the evidence is not to be given any greater or lesser weight because of the measure."

[5] After the appellant was arraigned and the jury empanelled, the trial judge gave some general directions to the jury, including the following:

"… children in our Court give evidence in matters such as this, and indeed in respect of all matters involving children in criminal courts, remotely. It's recorded. They're in a different room and it's then shown to the jury. That's the inevitable way, all witnesses who are children give evidence in that way. It doesn't give it any greater or lesser weight, and you should just take that into account in the same way that you do all other evidence. …"[5]

[6] The trial judge gave no directions to the jury concerning the pre-recorded evidence when it was played during the trial.

[7] During the judge's final directions to the jury, he briefly adverted to the pre-recorded evidence:

"The fact that [the children's evidence is] on CDs is, as I said on the first day of the trial, yesterday, a normal procedure for [trials] involving children, and it does not have any lesser or greater weight because it is in that form.

It is exactly the same as evidence that was given by other witnesses in the witness box."[6]

[8] The respondent contends that the judge's directions sufficiently complied with s 21AW.  The jury would have inevitably understood from them that no adverse inference was to be drawn as to the appellant's guilt.  In any case, no redirection was sought by the appellant's trial counsel.  Defence counsel's failure to raise this matter was a rational, tactical decision so that there was no unfairness and no miscarriage of justice.

[9] The judge's directions did not comply with the mandatory terms of s 21AW(2).  The judge did not give the mandatory directions required by s 21AW(2)(a).  His Honour made no mention at all of a support person and so did not comply with s 21AW(2)(c).  The respondent's submission that the very general terms of the judge's directions set out above were adequate to meet the requirements of s 21AW must be rejected, as it was in this Court's decision in R v Horvath.[7]  What was missing here was an instruction that the fact that the children gave their evidence by way of a videoed pre-recording, remotely, and in the presence only of a support person, was a routine court practice from which the jury must not draw any inference as to the appellant's guilt; its probative value was not increased or decreased nor given any greater or lesser weight because of those measures.

[10] In R v DM[8] and R v Michael,[9] this Court held that a failure to give the mandatory directions required by s 21AW had the following consequence.  This Court can uphold any subsequent conviction only if convinced, notwithstanding the non-compliance and after viewing the whole of the record, that there has been no substantial miscarriage of justice in the terms of s 668E(1A) Criminal Code.  The question is not whether the non-compliance could have had any adverse effect on the appellant's prospects of acquittal.  It is whether the trial being irregular, this Court is able to conclude for itself upon its review of the record that there has been no substantial miscarriage of justice.[10]

[11] The respondent contends that there has been no miscarriage of justice because the failure to ask for such direction was a tactical decision; defence counsel may not have wished to draw the jury's attention to the presence of the support person, especially as J relied on her support while clearly distressed.  The essential difficulty with that submission is that it overlooks the mandatory obligation which s 21AW places on the trial judge.  The fact that defence counsel at no stage asked for the required directions does not remedy the judge's failure to comply with the mandatory requirement.

[12] The case against the appellant turned wholly on J's evidence about events as a five year old when she was awoken from sleep and which she recounted for the first time almost a decade later.  The jury found the appellant not guilty on one of the three counts.  I have watched J's pre-recorded evidence.  The presence of the support person was obvious.  At times, J became emotional and noticeably distressed in recounting these events and sought assistance from her.  I do not consider that this Court can resolve the quintessential jury question of whether J's evidence established the appellant's guilt on counts 2 and 3 beyond reasonable doubt.  It follows that I am unpersuaded that no substantial miscarriage of justice has arisen from the omission to give the mandatory warnings required under s 21AW.

[13] For those reasons, I joined in the orders this Court made at the appeal hearing.  A consideration of the remaining grounds of appeal requires a more detailed understanding of the evidence at trial, counsel's addresses and the judge's directions to the jury.

The evidence at trial and relevant aspects of counsel's addresses

The particulars of counts 2 and 3

[14] The prosecutor particularised count 1 in his opening to the jury in this way:

"Now, what you’re going to hear from [J] are allegations in respect of two distinct time periods. There are three charges … but there was two periods of time in which those charges arose. Now, the first occasion that she alleges she was sexually assaulted, which is count 1, that occurred at a place that will come to be referred to during the course of this trial as the bush house. That being, she recalls it to be a home that was surrounded by bush and you’ll hear, during the course of examination-in-chief and cross-examination that this home is referred to as the bush house. And, at the bush house, count 1 occurred and I’ll explain to you in a moment what count 1 is. They only lived at that home, though, for a short period of time, when she was four or five so she can’t remember the address and, again, it is particularised as the first time that conduct of a sexual nature was performed on her by her father."[11]

[15] The prosecutor added that J was in bed with her little sister, E, and the appellant.  J awoke to find him rubbing her vagina inside her pants.  She was really scared.  She was about four or five.

[16] He particularised counts 2 and 3 as follows:

"Now, the second occasion or the second time period when she alleges she was sexually assaulted, and is counts 2 and 3 on the indictment, occurred when she was staying with her father at another home and, again, it’s perhaps uncontroversial to call this home the brick home. So there’ll be two distinct time periods: first, the bush home and secondly, the home with the bricks. Now, it becomes evident during the course of her evidence, while she is clear as to the actual sexual contact that occurred at the brick home, she is not clear whether [it] was a time that she was formally living with her father on a full time basis or whether it was a time when she returned on holidays, and you’ll hear her make that concession. Now, by no means were they the only two homes that they stayed at during the course of 1997 to 2000; there was quite a lot and you’ll hear about that during the course of evidence."[12]

[17] The prosecutor stated that counts 2 and 3 occurred some months or up to a year after count 1.  J was asleep in a room with E and her older brother K.  The appellant woke her, picked her up and carried her into the lounge room where he was sleeping.  He rubbed her vagina, skin on skin, inside her pants (count 2).  He immediately grabbed her hand, placed it on his penis and made her rub his penis.  She recalls having sperm on her hands and washing them (count 3).

The complainant's evidence

[18] J gave evidence by way of her s 93A Evidence Act statement to police in November 2009 when she was 15 and her pre-recorded evidence in March 2011 when she was 17.  She said that when she was five or younger, the appellant sexually abused her.  After her parents separated, she, K and E lived with the appellant for about a year and the events happened at this time when they could not return to their mother.  Police asked what she remembered about the appellant not letting her return to her mother.  She responded, "Well, I can't really remember anything that much.  I just remember that he took us to school, me and my brother um, I can't remember my little sister being there."[13]  She remembered the appellant's girlfriend, S, and S's daughter, B, who was about three.  They were living in a house in the bush on the central Queensland coast which came to be referred to as "the bush house".

[19] She was asleep when the appellant came in and she "just woke up to someone touching [her] private bits"[14] (count 1).  It was late at night, pitch black, and she had been asleep for "ages".[15]

[20] Police asked her what happened the next morning and she replied:

"I can't remember the morning that I woke up.  'Cause like I, I’ve [tried] to forget about it 'cause, 'cause it happened twice.  That was the first time in the bush and then the other time he lived in [the same area] as well but like, in a [sic] actual house."[16]

[21] This house came to be referred to as "the brick house".  After the appellant and S broke up, he spent time with S's sister.  At about this time, J, K, and E were in their bedroom in the brick house.  The appellant slept in the lounge room on a fold-out sofa.  He carried J to her bed.  He put his hand in her pants and touched her vagina, rubbing it (count 2).  K and E were in the room.  He grabbed J's hand without saying anything and made her rub his "dick"[17] (count 3).  She had sperm on her hands and was crying.  She washed her hands in the bathroom.  She did not want to tell anyone because she was scared.  She then said that counts 2 and 3 occurred when the appellant lifted her from a mattress onto the sofa bed in the lounge.  Police asked her what happened next.  She said, "Um, I was, I can't really remember it.  Like I was scared of him.  Like I didn't tell anyone."[18]  She added:

"I told one of my friends like this year 'cause I was stressin' out and like I, I think about it everyday.  And I didn't know when the right time was to tell mum. … 'Cause I was scared of what she might do, like I was just scared that someone might be angry at me for letting him do that, like."[19]

[22] The children then went to live with their mother.  Although she had stayed with the appellant since, she did not want to and did not feel comfortable around him.

[23] In response to further questioning from police, she said that she thought counts 2 and 3 occurred when the children were on holidays with the appellant rather than when they lived with him.  She added, "'[c]ause it was so long, I can't remember much.  But I'm sure we stayed there for ages."[20]  She thought she was four when count 1 occurred and five when counts 2 and 3 occurred.  She was sure the offences occurred during the time when she was predominantly staying with the appellant.  In attempting to clarify her account of counts 2 and 3, police said:

"So he's picked you up from you[r] bedroom and walked out to, taken you to the lounge room.  Okay um, and then you’ve said um, that he’s put his hand on your um, vagina and was rubbing your vagina? Um, and then he’s grabbed your hand and made it rub his um, penis and um, sperm’s come, has come out and you’ve washed your hand?"[21]

[24] J agreed, adding that she washed her hands in the morning when she got up.  K and E were asleep when the appellant took her to the lounge room.  She had told her friend, DG, about the abuse, but not the whole story.  She told her mother only the previous Monday night.  For the last couple of years she had been stressed out about the events especially after her mother's father died.  She would visit the cemetery and talk to him about it and then lock herself in her room.  She had been cutting herself and she had a fight about this with her mother.  She was also fighting with her boyfriend and her friends and was worried about her mother.  She began to think about what the appellant had done and it was all getting to her; she felt it was her fault.  She felt bad that she had let him do it without telling anyone for 10 years because she was scared.  No-one told her not to say anything about what happened.  Counts 2 or 3 probably occurred a couple of months or a year after count 1.  She agreed with police that counts 2 and 3 occurred the first time she and her siblings stayed at the brick house with the appellant.

[25] A few days before the police interview, her mother asked her about scarring on her arm and was angry with her.  She could not understand why J was self-harming when J had not had a hard life or been sexually abused as the mother had.  J cried and told her mother that she too had been sexually abused.  Her mother was shocked.  J also told E, who became upset and K, who became angry.  The whole family was crying.  Her mother rang the Child Protection Unit and reported the matter to police.  J had also told her boyfriend, S, but not the full story.

[26] She told E that, when she was little, the appellant touched her in the wrong areas and she had been too scared to tell anyone.  E cried and asked "are you sure it was dad?"[22]  J did not want to further upset E and, although J was sure it was the appellant, she replied to E: "I don't know".[23]  E "just bawled her eyes out".[24]  J did not want to tell anyone because she was scared.

[27] In J's pre-recorded evidence, she stated that what she told police was true and her best recollection.  On the night count 1 occurred, J noticed something at the end of the bed, an outline of a really big male figure with the size and shape of the appellant.  She went back to sleep until she felt her legs being lifted up and her knees bent.  She was "like, just waking up and falling back to sleep".[25]  She did not see anyone but she felt hands between her calves and ankles.  She probably opened her eyes a little bit in a squint.  At one stage she did open her eyes but it was dark.  She could see a bit of shadows from "like furniture and stuff"[26] and someone down the end of the bed.  She had been sleeping in the middle of the bed between her sister and the appellant.  Her sister was still in bed, but the appellant was no longer beside her.  The person at the foot of the bed touched her vagina on the outside of her clothes.

[28] On the night counts 2 and 3 occurred, she was lying on a mattress in the brick house.  She was not sure whether E and K were on the mattress but they were in the same room.  When asked whether she recognised the person who carried her from the mattress to the lounge room, she replied:

"I know it was my dad, 'cause I – he has this certain – you know how you have parents and you have like a certain feel to like how they would touch you. … Like he picked me up, and like I knew it was my dad 'cause I could feel like his touch."[27]

[29] The appellant took her into the lounge room where the lighting was "dull".[28]  She was nervous when she gave her statement to police and became confused as to where counts 2 and 3 occurred.  He placed her on the sofa bed in the lounge room.  She thought he moved onto the sofa bed because she felt him beside her.  The appellant had a separate bedroom in the brick house.  He touched her, skin on skin, on her vagina.  He grabbed her hand and made her move it up and down on his penis which was erect.  When she woke up in the morning, her hands were "all sticky".[29]  She remembered that when he was holding her hand on his penis, her hand became all wet.  Afterwards, he placed her on a mattress on the lounge room floor and she slept until morning.  When she woke up, the appellant was in the lounge room.  Counts 2 and 3 occurred when she was visiting, not living, with the appellant.  She was about five years old and in pre-school.

[30] In cross-examination, she agreed that when she disclosed the abuse to her mother and family she was stressed out about a disagreement with her closest girlfriend who was giving her a hard time because of J's relationship with J's boyfriend, S.  She had stressed out about the appellant's behaviour nearly every single day from when she was young.  She agreed that she could not be mistaken the appellant abused her on two separate occasions.  It took her 10 years to raise it with her mother because she was scared.  When J was in high school, about two years before she told her mother about the appellant's abuse, she first learned that her mother had been sexually abused.  She knew that her mother had tried to hurt herself in the past and had seen her scar.  J had been self-harming because of all her problems and because she was worried about her mother whose father had died the previous year.

[31] J said count 1 happened in the appellant's bedroom.  She went to sleep that night on a double or queen size bed with the appellant on her left side and E on her right.  Normally, she and E shared a bedroom.  When defence counsel cross-examined her about her confusing account to police concerning the first incident, she interrupted:

"Why don't you ask him.  Fucking ask him.  Ask him what happened.  Do you know how this makes me feel?  Why don't you tell the truth?  Tell the truth.  You did this to me.  Look what you've done to me.  You fucked my life up."[30]

[32] The judge adjourned the court.  Ten minutes later, with J more composed, the cross-examination continued.  She disagreed that she did not make clear to police that the first incident occurred in the appellant's bedroom.  She agreed that she did not tell police that she remembered the silhouette of the person by the bed.  Since the police interview, she had time to think about it and to "get as much memory"[31] as she could.  She denied that she may be remembering things that did not actually happen.  She agreed that she could not identify the man involved in count 1 but she assumed it was the appellant because he was the only adult male in the house.  She agreed she would not know if anyone had visited the house that night.  She could not remember how often she and E slept in the appellant's bedroom.  The appellant's girlfriend, S, was not present that night.

[33] On the night counts 2 and 3 occurred, she agreed she went to sleep on a mattress on the floor of a bedroom in the brick house and that K and E were also asleep in that room.  Someone lifted her up and carried her into the lounge room but she did not wake up.  Although the appellant had a bedroom in the house, he was sleeping that night on a sofa bed in the lounge room.  He put her onto the sofa bed and rubbed the area of her vagina under her clothes before placing her hand on his penis.  Defence counsel put to her that the appellant did not indecently deal with her at any time.  She disagreed and became upset, adding: "Can he see me?  How can he do this to me? … He doesn't deserve my brothers – don't deserve them."[32]

Other evidence

[34] E gave evidence that J told her that, when they were both little and not living with their mother, someone in the house touched her.  When E asked her who, J said she thought it was the appellant.  J then told their mother.  J said she was not sure if it was the appellant on the first occasion but later said she knew it was because it happened more than once.

[35] K gave evidence of a family conversation in November 2009.  J was crying and E and their mother were upset.  J told him that somebody had touched her; she was not sure who as it was dark.  K later heard J tell their mother: "It was definitely Dad and it did happen on two occasions".[33]

[36] J's mother gave evidence that she gave birth to K in January 1992; J in January 1994; and E in October 1995.  The mother and the appellant separated in about 1997 and the children lived with the appellant.  During 1998, J and E moved back to live with her in an inner northern Brisbane suburb.  K initially remained with the appellant but joined J and E a few months later.  J attended a pre-school in western Brisbane and enrolled in grade 1 in 1999, having turned five that January.

[37] On 2 November 2009, she noticed marks on J's wrist.  E was present.  The mother was upset and shocked.  She asked J why she had done this to herself and questioned J, who was crying.  The mother described herself as "pretty hysterical".[34]  J did not respond and the mother left the room.  When she returned, J told E to tell the mother.  Ultimately, J said that she self-harmed "because of what had happened to her … what her father did to her."[35]  The mother told J that J had had a good life; nothing had happened to her like what the mother had been through.  J said: "Yes, yes, there has, Mum."[36]  She said the same thing had happened to her; she had been abused.  J knew that the mother had been sexually abused in the past.  J said that the appellant had touched her a couple of times when she was living with him when she was about five years old.  On the first occasion she was in bed with him and he touched her on her "privates".[37]  He then picked her up and told her: "Come and lay in bed with Daddy."[38]  The second incident occurred when she was in the lounge room.  He removed her from her bedroom and put her in bed with him.  He touched her "privates"[39] and made her touch him.  She telephoned the appellant and then returned to J who gave her a more detailed account.  She tried to again telephone the appellant but could not raise him.

[38] In cross-examination, she explained that after she and the appellant separated, the children spent Christmas 1997 with him and stayed for about a year.  They had a one month, unsuccessful reconciliation following which she returned to her home in another coastal city.  The children stayed with him until towards the end of 1998.  She was sexually abused when she was about six.  She also had an episode of self-harming which left a scar and she had explained this to J.  She told her children in a general way but without details that she had been sexually abused.  She agreed that at the committal proceedings she said that her self-harming led to hospitalisation and that she explained to her children that she had been improperly dealt with by a man when she was six.

[39] She agreed that in her statement to police in November 2009, six days after J's complaint to her, she said that J told her she was unsure who touched her when count 1 occurred as it was dark, but J thought it might have been the appellant.  The mother telephoned him and asked if there were other men living in the house when J was living with him.  She told him that he should find out who was responsible as she did not want to believe that he had done it.

[40] J's boyfriend, S, gave evidence that he went to J's house on the night she told her mother and family about the abuse.  She said that the appellant had "sexually assaulted her … touched her, raped her or something".[40]

[41] DG, to whom J referred in her police statement, did not give evidence.

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

Relevant aspects of counsel's addresses

[43] The prosecutor's closing address included the following.  J did not blame the appellant outright for count 1 but the jury could be confident from her evidence that he was responsible.  She said that she was asleep in bed in the appellant's room with E on one side and the appellant on the other.  He was the only male living in the bush house.  When she woke, she felt a conscious movement of her legs.  The appellant was no longer lying in the bed next to her.  Although it was dark, the size and shape of the figure at her feet was the size and shape of a male similar to the appellant.  On the second occasion when counts 2 and 3 occurred, J was confident that the man who picked her up, took her to the lounge room and did those acts was the appellant.

[44] Defence counsel in his closing address emphasised that a witness who is truthful but mistaken can be very compelling.  Later, he suggested that the circumstances in which J came to make her complaint and its lack of detail led to the conclusion that she was making up the story as time went along.[41]  He reminded the jury that they had not heard from J's school friend, DG, although J told police that she confided in DG about the appellant's alleged abuse.  He emphasised the very wide time frame for all three counts and that the appellant was confronted with these allegations about 10 years after they were said to have occurred.  It was hard for the appellant to disprove the allegations although this was not something he was required to do.  The jury would be left in doubt of the appellant's guilt on all charges.

Relevant aspects of the judge's directions to the jury

[45] The judge gave the jury the following directions as to the concerning aspects of the delay in this case:

"You have got to bear in mind in this case that the evidence, significantly involving the complainant, involves events that took place in the late 1990s and she is recounting them in 2009, about 10 years later. And two things about that - and I will come to them in a greater detail a bit later - one is that you might expect there will be some inconsistencies between events when they are described in different ways. And people describing the same event describe them in different ways. They are described in more or lesser detail in one occasion from another. They use somewhat different language.

If two of you observed a car accident on the way home tonight and you were describing it to someone, a mutual friend, you would probably give different descriptions of it. And then when you went home again and you are describing it to your wife, you might again give a different description. So bear those matters in mind.

Equally, however, it is important - and I will come to this in due course later - that you bear in mind that, as [defence counsel] said, an ancient or an old complaint such as this bears particular difficulty for people to refute. And I think he referred to - and I will come to it later - the example that he gave involving Uncle Ben and the difficulties that might be presented by an old complaint such as this. Simple matters that are not considered to have importance could take on critical importance.

One of the examples he gave was that if a complainant had said she sat on a paint tin when she was in the shed while she was looking at the pornographic magazines, the police went around and found the paint tin there, that might be considered corroboration of her evidence. Ten years later no-one will know whether there was a paint tin there or not, and so that the parties lose the benefit of being able to rely on matters such as that to bolster or to undermine their evidence.

They are important matters for you to consider when you are considering what evidence you accept and what evidence you reject, and whose evidence you accept and whose evidence you might reject in this case. As I said, it is for you to judge whether a witness is telling the truth and correctly recalls the facts about which he or she has testified.

…

In this case, the complainant's long delay in reporting the incidents that she says happened in probably 1998 or 1999, has an important consequence. Her evidence may not have been able to be adequately tested or met after the passage of so many years, the [appellant], having lost by reason of the delay means of testing and perhaps meeting her allegations that might otherwise have been available, and it was this passage that I referred to earlier when I spoke about Uncle Ben example that you will recall [defence counsel] referred to.

By the delay, the [appellant] may have been denied the chance to assemble soon after the incident is alleged to have occurred evidence as to what he and other potential witnesses were doing when, according to the complainant, the incident happened. Had the complainant instead made known the complaint to the [appellant] soon after the alleged event or to others - the police, for example - it might have been possible then to explore the pertinent circumstances in greater detail and perhaps to gather and to look, to call at a trial, evidence laying doubt on the complainant's story; opportunities which may now have been lost by the delay.

In this case, it is not specifically suggested that the delay has meant the [appellant] has, as a result, been unable to call particular witnesses, but as [defence counsel] illustrated, perhaps through the story about Uncle Ben, there may have been peripheral matters that might have been of assistance to him. You must bear those in mind when assessing the reliability and the credibility of the complainant in this case and when assessing the whole of the evidence in this case. You might think that the fairness of the trial, as the proper means of proving the accusation, has been impaired by reason of the long delay.

So, I warn you, that it will be dangerous to convict upon the complainant's testimony alone in this case, unless after scrutinising it with great care and considering the circumstances relevant to that of valuation and paying heed to what I am now saying to you, you are satisfied beyond reasonable doubt of its truth and accuracy. It does not of course mean that in a case such as this that involves a complaint made, in this case, about 10 years earlier, cannot be proven, and that you cannot accept it. I am just warning you that you do need to be conscious of those matters. You have to scrutinise her evidence with great care, look at all of the circumstances relevant to the evaluation of her evidence and having regard to what I've said, consider whether you are satisfied beyond reasonable doubt of the complainant's evidence" (errors as in the transcript).[42]

[46] The judge told the jury that each offence was separate and somewhat different so that their verdicts need not be the same, although each essentially involved an assessment of J's reliability and credibility.  If they had a reasonable doubt concerning the truthfulness or reliability of her evidence in respect of any offence, they should take that into account in assessing the truthfulness or reliability of her evidence generally.  If the jury had a doubt on one count, it did not mean they could not convict on the others but they should consider why they had a reasonable doubt about that part of the evidence in respect of that count and consider whether it affected the way they assessed the rest of her evidence.  His Honour added:

"… In this case, you might well think because all of it very much depends upon the reliability and the credibility of the complainant, that if you assess that she is unreliable or not worthy of credit in respect of one count, that that may very well affect your view in respect of the other counts also.

So, you might think that the possibility of bringing in separate verdicts is more of a technical than a real possibility. But it is a matter for you. You are entitled to make your own assessment of her evidence and come to conclusions in respect of each of the three counts. But I do say to you that you must take into account all her evidence, and if you find her not guilty of one count, you must examine your reasons for doing that. If that is because of a general view of her reliability or credibility, that would very much form your assessment in respect of other matters as well" (errors as in the transcript).[43]

[47] When explaining the elements of the offences, his Honour stated that the offences were alleged to have occurred between 1 December 1997 and 14 January 2000, a period which related to when J first went to live with the appellant at Christmas 1997 and before she was in grade 1 when she said these events occurred.[44]  After setting out the elements, the judge stated that there was little difficulty with the law in respect of them, adding:

"… The important function that you have to determine is whether you're satisfied beyond reasonable doubt that the events took place, generally, in the way the complainant describes and you must be satisfied of that beyond reasonable doubt."[45]

[48] His Honour then referred to aspects of the evidence, including those emphasised by counsel.  As to count 1, the judge said:

"… if you accept [J's] evidence, that it concerned about identification, whether it was in fact the father, because she did say earlier that her dad wasn't beside her when this person was scratching at the end of the bed. She agreed they usually slept in their own room and she can't really recall why they were now sleeping in his bed" (errors as in the transcript).[46]

[49] The judge reminded the jury of inconsistencies between the complainant's evidence and the evidence of preliminary complaint witnesses.

[50] His Honour next summarised the prosecution case.  The prosecutor emphasised that the jury must find J's evidence truthful and reliable and urged them to scrutinise it with some care, but submitted that they would be so satisfied.  She appeared to have a good relationship with the appellant and no reason to make up the allegation.  It was understandable she did not tell others because she was young and scared and probably did not realise its importance.  This must have become apparent as she matured.  It was understandable that she disclosed it in the emotional discussion with her mother.  It was also understandable that she was reluctant to disclose it earlier because of her good relationship with the appellant whom she still loved.  Her emotional outburst during the pre-recorded evidence was consistent with truthfulness and her evidence generally had the ring of truth.  It was difficult for J to communicate precisely what happened 10 years earlier, but the jury would accept the events occurred as she alleged, between the dates alleged.  There could be no doubt that the perpetrator was the appellant.  J said she recognised him on the second occasion (counts 2 and 3).  On the first occasion (count 1), she was in bed with the appellant and E when she saw a man's shape at the end of the bed.  The appellant was no longer beside her and yet he was beside her again in the morning when she awoke.  The inconsistency in her statement to police that she was taken to her bed from the lounge was, as she explained, because of her nervousness when talking to police.

[51] The judge summarised the defence case in this way.  Defence counsel emphasised the seriousness of the charges and the onus and standard of proof.  He warned the jury that an honest but mistaken witness could be a compelling witness.  J may have made the complaint in response to her mother's anger at J's self-harming when her mother was both hysterical and upset.  She may have made the complaint to gain her mother's sympathy so J did not get into trouble for her self-harming.  He questioned whether J's version of events was coloured by her sexual awareness as a 15 year old rather than being a genuine memory of what happened when she was five years old.  She may have embellished her recollection of events over time.  In any case, defence counsel emphasised, her version of events was confusing.  She was inconsistent as to whether count 1 occurred in her bedroom or in her sister's bedroom, in the appellant's bed or her bed.  Her evidence could not be relied on beyond reasonable doubt.

[52] There were no applications for redirections.  The jury retired to consider their verdict at 1.03 pm and returned with their verdicts at 3.20 pm.

Grounds 1 and 2: Was the jury verdict unreasonable and were the guilty and not guilty verdicts inconsistent?

[53] Grounds 1 and 2 are interconnected so that it is helpful to discuss them together.

[54] The appellant contends that the only rational basis for the jury's not guilty verdict on count 1 is that they were not satisfied beyond reasonable doubt that it was the appellant who committed the offence.  Their reasonable doubt in respect of count 1 ought to have also arisen with respect to counts 2 and 3.  J's uncorroborated evidence as to the identity of the offender was as poor in respect of counts 2 and 3 as it was in respect of count 1.  The differing verdicts on the three counts could not be attributed to any contradictory evidence.  J may have made an honest mistake as to the identity of the perpetrator.  The circumstantial evidence that the appellant was the only male in the house at the time of the commission of the offences was undermined by the verdict of not guilty in respect of count 1.  The jury's doubt in respect of count 1 were relevant and should have caused the jury to have a like doubt in respect of counts 2 and 3.

[55] The complainant's account was internally conflicting and uncertain.  She was initially uncertain whether counts 2 and 3 occurred when she was living with the appellant or living with her mother and holidaying with him.  She described them as happening when she was five years old and in pre-school and before she went into grade 1.  The evidence was that the complainant was three and four years old when she lived with the appellant from late 1997 to 1998 and later that year returned to live with her mother.  The mother could not recall any occasions when J and E returned to visit the appellant on holidays until they were both in primary school.[47]  J's evidence was consistently that E was present in the house when counts 2 and 3 occurred.  On the mother's evidence, J did not return to visit the appellant until both E and J were in primary school.  That could not have been earlier than the January after E turned five, namely, January 2001, well outside the charged period.

Conclusion on grounds 1 and 2

[56] J was born in January 1994 and E in October 1995.  The offences were charged and particularised as occurring between 1 December 1997, when J was still three years old, and 14 January 2000, the day after J's sixth birthday.  Counsel appear to have addressed the jury on the basis that the charged and particularised time period was an element of each offence.  The judge told the jury the dates were elements of the offences although uncontroversial ones.  In the circumstances of this case and in light of the way it was conducted, I accept the charged and particularised dates were elements of the offence: cf R v Jacobs.[48]  Although there was no direct evidence on this point, it is well known that Queensland children ordinarily cannot start school until the January after they turn five, in the year they are turning six with school commencing in late January.  It follows that J could not have commenced school until late January 1999.  Ultimately, J's evidence was that counts 2 and 3 occurred after she and E had returned to live with their mother and while they were visiting the appellant when she was five years old and in pre-school, that is, in 1998.  The mother gave evidence that after J and E returned to live with her they did not return to visit the appellant until both J and E were at primary school.  E could not have commenced school until late January 2001, more than a year outside the period charged in the indictment.

[57] Unfortunately, the appellant's contention in this Court, that the prosecution did not establish the temporal aspect of its particularised case beyond reasonable doubt, was not raised at trial.  It has some force but J at no stage resiled from her account that the appellant committed counts 2 and 3 and there was no contradictory evidence given at trial.  In the end I am not persuaded that, had the matter been raised, the jury could not have concluded that, after 10 years, the mother was mistaken as to when J and E first returned to visit the appellant.  It was open to a jury to accept J's evidence that counts 2 and 3 occurred when she was five years old on a visit to the appellant with E.

[58] The next issue is whether the evidence was sufficient to prove beyond reasonable doubt that it was the appellant and not someone else who committed counts 2 and 3.  J's evidence was that it was dark and she was awoken from sleep when she was carried from a mattress on the floor to a sofa bed in the lounge room where counts 2 and 3 occurred.  She said the appellant was sleeping in a sofa bed in the lounge room that night.  She knew it was the appellant by his touch when he carried her.  When she woke the next morning he was in the lounge room.  It was not suggested to her that anyone else was present that night.  The jury was entitled to be satisfied beyond reasonable doubt that it was the appellant and not someone else who committed counts 2 and 3.

[59] The next issue is whether the guilty verdicts on counts 2 and 3 are inconsistent with the not guilty verdicts on count 1.  If the verdicts can be properly reconciled so that they are not illogical or an affront to common sense, they are not inconsistent: MacKenzie v The Queen.[49]

[60] The judge's directions set out at [46] of these reasons strongly encouraged the jury to conclude that if they had a doubt as to the appellant's guilt in respect of one count, they would also have a doubt on each remaining count.  His Honour's direction, however, left it open to the jury to return different verdicts on different counts if satisfied beyond reasonable doubt of the appellant's guilt on one or some counts but not others.  Despite those directions, his Honour in his sentencing remarks rationalised the differing verdicts in this way:

"… It seems to me that the jury's verdict … was on the basis that the complainant had said during the course of her evidence in respect of that first offence that she was uncertain if it was you and that part of her reason for concluding ultimately that it was, is because you committed what she described as this second offence. On that basis the jury seems to have analysed the evidence and found you not guilty of [the first] offence. …"[50]

[61] There is some force in those observations.  Further, the jury may have thought that J's reliability was especially questionable as to count 1: she may have been only three years old and she gave differing versions of it to police.  They may have been concerned that she turned an innocent touching into sexual abuse using hindsight after counts 2 and 3 occurred.  On the other hand, she did not express doubt as to the identity of the perpetrator of counts 2 and 3 as she did in respect of count 1.  The appellant was in the lounge room when she awoke the next morning.  J's description of semen on her hands and washing it off was a chilling detail which tended to exclude the possibility of a sexual fantasy or dream.  The disparate verdicts are able to be logically reconciled in this way and are not inconsistent.

[62] The not guilty verdict on count 1 did not require the jury to return a not guilty verdict on counts 2 and 3.  After reviewing the whole of the evidence, I am satisfied it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on counts 2 and 3.

[63] Grounds 1 and 2 are not made out.  It follows that a retrial must be ordered.  Whilst conscious of the fact that the relevant jury directions at the retrial will turn on the evidence at the retrial and the way the retrial is conducted, I will briefly consider the remaining grounds of appeal.

The judge's directions as to delay

[64] The judge's directions as to delay are set out at [45] of these reasons.  The appellant contends that these directions, though correct, are inadequate because they failed to identify the circumstances unique to this case which warranted the jury evaluating J's evidence with great scrutiny before acting on it.  So much was required by Longman[51] and Crampton v The Queen.[52]  The judge should have given directions about J's very young age (between three and six) at the time she claimed the offences occurred.  The directions should have canvassed the likelihood that error in recollection will increase with time, especially as over a decade had passed, and that experience has shown that recollection of childhood events can be erroneous and liable to distortion over time.  They should also have highlighted the absence of a timely complaint; that the offences occurred when J was awoken from sleep; that she refused to accept that she may have mistaken memories because of the time lapse; her admitted uncertainties and inconsistencies about details of the alleged offending; and that she had tried to block out her memory of the incident.

[65] The appellant's contentions are supported by the observations of both Deane and McHugh JJ in Longman and of Gaudron, Gummow and Callinan JJ in Crampton.  In Longman, Deane J stated that an appropriate direction to warn a jury of the dangers of the lengthy delay in making a complaint in that case was one aimed at drawing attention to the particular difficulties facing the accused in presenting his case so long after the alleged offences.  These included that the complainant awoke to find the alleged offence being committed but pretended to remain asleep and the possibility of a child fantasising about sexual matters when half asleep or between periods of sleep.  This did not mean that the child's evidence could not be accepted, but they were reasons why her evidence should be:

"scrutinized with very great care indeed.  It was not merely a matter of whether the jury were satisfied beyond reasonable doubt that the complainant was an honest witness … [i]t was a question of the intrinsic reliability of the only evidence which was capable of sustaining a finding of the applicant's guilt."[53]

[66] McHugh J observed that:

"The terms of [th]e warning will depend upon the particular circumstances of the case: Carr [(1988) 165 C.L.R., at p 318.].

In the present case both offences are alleged to have commenced when the complainant was asleep. She testified that on each occasion she pretended to remain asleep. She stated that after the incident in the applicant's bed she went back to sleep. She could not remember whether she went back to sleep after the incident in the truck. She was about six years old when she alleges that the first offence occurred, and about ten years old when she alleges that the second offence occurred. …

The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to 'remember' is well documented. The longer the period between an 'event' and its recall, the greater the margin for error. Interference with a person's ability to 'remember' may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine: Hunter, Memory, rev. ed. (1964), pp 269-270.

No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred. The opportunity for error in recalling, twenty years later, two incidents of childhood which are alleged to have occurred as the complainant awoke, and then pretended to be asleep, are obvious. Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be. …

To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. …

Accordingly, the present case was one where the requirement of a fair trial required a strong warning to the jury of the potential for error in the complainant's testimony. The jury should have been warned that, in evaluating her evidence, they had to bear in mind that it was uncorroborated, that over twenty years had elapsed since the last of the alleged offences occurred, that experience has shown that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors, that the likelihood of error increases with delay, that the complainant had testified concerning incidents occurring to her as a young child after she had awoken and pretended to be asleep, that no complaint was made to her mother, and that, by reason of the delay and lack of specificity as to the dates, the defence was unable to examine the circumstances of the alleged offences. To what extent these matters needed elaboration or a consequential warning that it would be unsafe to convict on such uncorroborated evidence was very much a matter for the trial judge."[54]

[67] In Crampton, Gaudron, Gummow and Callinan JJ stated:

"… the denial to an accused of the forensic weapons that reasonable contemporaneity provides constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions. Almost all of the passage of the majority in Longman to which we have referred (with appropriate adaptations to the circumstances of this case, including that because of the passage of so many years, it would be dangerous to convict on the complainant's evidence alone without the closest scrutiny of the complainant's evidence), should have been put to the jury. Additionally, this was, in our opinion, a case in which the trial judge should, again with appropriate adaptation, when summing up, have drawn attention to the additional considerations mentioned by Deane and McHugh JJ in Longman: the abstention, by the prosecutor, from questioning each co-complainant about the respective charges, the fragility of youthful recollection, the absence of a timely complaint (subject to any reasonable explanation therefor) and the possibility of distortion."[55]

Conclusion on judge’s direction as to delay

[68] There were worrying aspects about this case: the delay; the inconsistencies in J's account; the absence of timely complaint and the way J's ultimate complaint to her mother and family came about in circumstances where her mother was calling on J to justify her self-harming; her admitted uncertainties; that the alleged offences occurred when J was awoken from or in between periods of sleep; that she was remembering events which occurred when she was aged between three and six; and the risk of a false reconstruction arising out of inadvertent empathy with her mother's history of sexual abuse at age six and subsequent self-harming.  All these factors were matters which the judge should have identified for the jury as particular factors, as well as the general delay in making the complaint, that required that the jury to scrutinise J's evidence with great care before acting on it.

The absence of a Domican direction

[69] The appellant contends that the judge should have warned the jury that J may have made an honest but mistaken identification of the appellant as the offender.  This was especially so because the identification was made by a very young child in a darkened room after awakening from sleep.  If a Domican direction was not called for because the evidence of identification was circumstantial evidence of identity based on the premise that the only adult male in the household was the appellant, then a circumstantial case direction was warranted, consistent with Shepherd.

Conclusion on absence of Domican direction

[70] The conduct of this case did not raise the mistaken identification of the appellant as a material issue, at least in respect of counts 2 and 3 which is all that this appeal concerns.  There was no suggestion that any other male was living in the brick house at the particularised times when counts 2 and 3 were said to have occurred or that, if there had been an unknown intruder, the appellant would not have been aware of it.  It was not suggested to J in cross-examination that any other male may have visited the house at the time counts 2 and 3 occurred.  J said she knew the person who carried her onto the sofa bed and abused her was the appellant because of his touch.  When she woke up the next morning, he was in the lounge room.  If a comprehensive direction as to delay and the other weaknesses in J's evidence were given consistent with Longman and Crampton, I do not consider that a Domican or Shepherd direction was warranted in light of the way this trial was conducted.  Whether such a direction is warranted at a retrial will depend on the evidence at the retrial and the way the retrial is conducted.

Conclusion

[71] These are my reasons for joining in this Court's order on 29 July 2013 that the appeal be allowed and the convictions quashed and for now further ordering that there be a retrial.

FURTHER ORDER:

A retrial is ordered.

[72] MUIR JA:  I agree that a retrial should be ordered for the reasons given by the President.  I agree also with her reasons for the orders allowing the appeal and quashing the convictions.

[73] ATKINSON J:  I agree with the orders proposed by the President and with her Honour's reasons.