R v Khaled[2014] QCA 349

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  The appellant was convicted after a two day jury trial on 9 September 2014 of indecent treatment of a girl under 12 between 31 October 2010 and 1 January 2011 (count 1) and indecent treatment of the same girl under 16 on 8 January 2013 (count 2).  Following legal argument after the close of the prosecution case, the primary judge directed a not guilty verdict on a third count of indecent dealing with the same girl under 16 years on 9 January 2013.  He was sentenced on 11 September 2014 to six months imprisonment suspended after three months with a two year operational period on count 1, and on count 2 to eight months imprisonment suspended after three months with a two year operational period.

2. He has appealed against his convictions on the following five grounds. The first is that he was deprived of a fair trial by the admission of inadmissible and prejudicial evidence that warranted the discharge of the jury. The second is that a miscarriage of justice was caused by an erroneous direction and the failure of the trial judge to properly direct and warn the jury.  The third is that there was a miscarriage of justice caused by the failure of the trial judge to properly direct the jury in relation to s 23 Criminal Code 1899 (Qld).  The fourth is that in all the circumstances the verdicts were unsafe and unsatisfactory.  The fifth is linked to and was argued as part of the first ground.  It is that the appellant was deprived of a fair trial because there was an unacceptable risk that the jury was tainted.  In respect of the first and last grounds of appeal, the appellant applied to adduce further evidence.

3. It is sensible to commence a discussion of these grounds of appeal with a review of the evidence at trial.

The complainant's evidence

4. The complainant gave evidence by way of her statement to police on 21 February 2013 which was tendered under s 93A Evidence Act 1977 (Qld).^[1]  She also gave pre-recorded evidence including cross-examination on 14 March 2014 under s 21A Evidence Act.

5. As to count 1, she told police that sometime between 31 October 2010 and 1 January 2011 she was at the home of the grandmother of her friend J, together with her family and friends including the appellant and his wife.  She was in a bedroom lying on her stomach on the bed using the PlayStation with J.  The appellant was seated between her and J.  He started to touch her "bum" and squeeze it, pat it.  She tried to move away but he kept doing it.  She said she did not want to play and left to get a drink.  He was touching her with his right hand for about 10 minutes.  She thought he was trying to rub her back but she kept moving and he just kept touching her "bum".  He did not touch her back.  He touched her near the bottom of her legs at the back.  She felt uncomfortable.

6. When cross-examined in her pre-recorded evidence, she agreed she did not tell her mother or her good friend J because she thought it was a "one off thing" and "maybe he was doing it by accident".  She agreed that it might have been an accidental touching and he may have thought it was her "back or something".  She agreed that in her mind it was possible that this was some sort of accidental touching while she was playing a video game (count 1).

7. As to count 2, the complainant told police that she went to J's house for a two night sleepover in January 2013. They went to the pool with the appellant, J's father and the complainant's mother, who was holding a baby.  They were playing a game called "top, middle, bottom".  The appellant was "it" and was swimming towards J to "get" her.  As the complainant swam quickly to avoid getting caught, the appellant touched her on her "boob" and squeezed it.

8. She gave further details in response to questioning. The appellant said, "top", so they had to swim on the top of the pool and he could hear them splash and find out where they were. He had to have his eyes closed but she and J saw him peeking. He was going for J but the complainant was closer. He turned around, grabbed the complainant and touched her "boob".  She pushed him and went away.  She explained that another word for "boob" was "breast".  When asked whether the appellant touched her on purpose or by accident, she said "I think it was on purpose because he squeezed … Well, he was swimming towards and then he like grabbed my arm and then he just did that and for a while and didn't let go and then I pushed him and then I swam away."  She explained he used his hand to squeeze her breast.  She was not sure for how long; maybe a couple of seconds.  His eyes were open.  She was facing sideways and he was swimming towards her in the middle of the game.

9. In cross-examination during her pre-recorded evidence, she agreed she could not remember which breast he grabbed or which hand he used. This was the only time he ever grabbed her breast.  The incident took "maybe, like, two seconds"; a very short period of time.  It was a single grab not multiple squeezes.  She agreed that it "was just a grabbing motion for a second or two at most" and that "he happened to get [her] on the breast".  She "thought maybe it was by accident again".  She felt confused about his behaviour.

10. She gave evidence of an uncharged incident at J's house that day. She told the others she was getting changed and not to come in.  The appellant pushed open the door.  She saw his face reflected in the mirror and she told him to get out and she shut the door.  He said sorry and left.

11. As to count 3 on which the jury returned a directed verdict of not guilty, she said that on 9 January 2013 she was at the pool with J, J's father and the appellant. J's father asked how to play the game.  The appellant joked that if someone said "top" they would have to take off their tops; if someone said "bottom", they would have to take off their bottoms.  J said "no" and explained how it was played.  While they were playing the game underwater the appellant put his face on her swimmers near her private part.  She pushed him away and left the pool.

12. The complainant's mother gave evidence. The complainant did not tell her about these incidents until 10 January 2013 about two years after count 1 and a day or two after counts 2 and 3.  The complainant said she was uncomfortable being around the appellant.  When her mother asked why, the complainant responded that on 8 January when they were playing in the pool, he touched her breasts.  She pushed him and swam away.  She then told her mother about count 3.  As to count 1, she said that when she was at the home of J's grandmother, she and J were in the bedroom of J's mother lying on the bed playing a video game when the appellant came in and sat between them.  He put his hand on the complainant's "bum", squeezing it.  She moved or shuffled.  He then put his hand against her thigh.  She left the room to get a glass of water.  In cross-examination the mother agreed that she and the complainant had a good mother-daughter relationship and were very close.  The complainant told her that she thought the appellant "was just playing around" because they knew him and that was why she had not told her mother earlier.

The defence case

13. The appellant gave evidence denying that he committed either offence. He agreed there may have been occasions when he, J and the complainant were alone playing PlayStation but denied ever touching her in the way alleged.  He conceded the possibility that he may have accidentally touched the complainant whilst in the pool at the time count 2 was alleged to have occurred but he had no recollection of this.  He also denied committing count 3 and the uncharged incident of observing the complainant in the mirror when she was changing at J's house.  He maintained this account in cross-examination.

14. The appellant's wife gave evidence that she and the appellant had been present at social functions with her friend, the complainant's mother. She did not notice anything unusual on these occasions and saw nothing untoward in the way the complainant related to the appellant.

Was the appellant deprived of a fair trial by the admission of inadmissible and prejudicial evidence warranting the discharge of the jury?

15. The appellant's first and final grounds of appeal concern the judge's directions to the jury when reading from the transcript of the complainant's statement to police tendered under s 93A.  Her Honour had not been provided with a copy of the transcript in the edited form agreed to by counsel prior to the trial and inadvertently read to the jury a short portion of evidence which counsel had agreed was inadmissible.  The transcript records the following:

"Well, we were playing a game, and he was it; he was going for [J] because he said top so we have to swim on the top of the pool so he can hear us, like, splash to find out where we are, and he has to have his eyes closed, but [J]and I kept seeing him peeking. He was going for [J], and then I was closest so he turned around and went like that ... and grabbed me and just touched my boob, and then I pushed him, and I went away. And after that I didn't know he was doing it to [J's] - - -."  (my emphasis)

16. The passage in bold is the impugned direction. The prosecutor immediately interrupted the judge and asked for the jury to leave the court room.  Once this was done, he explained that the judge had begun to refer the jury to the complainant's statement about an incident relating to another complainant concerning charges on which the appellant had been acquitted.  Defence counsel told the judge that he did not think anything turned on it,^[2] that it was best ignored,^[3] and did not apply for a mistrial.  After counsel explained which portions of the transcript had been excised by agreement, the jury returned and, with the concurrence of counsel, the judge continued reading the relevant and admissible portions of the complainant's evidence.  The judge completed her directions to the jury without any reference to the earlier impugned direction.  Defence counsel did not request any further directions arising from this incident.

17. Earlier in the summing-up the judge told the jury: "There was some editing of tapes to remove the relevant (sic) portions … There is no reason to speculate about the parts of the tapes that were edited.  You must reach your decision based only on the evidence that was before you."

18. And earlier in the trial, after the complainant's s 93A statement was tendered and before it was played, the judge told the jury:

"Just before we commence, I haven't seen any of this evidence, just as you haven't, but often in these types of cases – almost always – there's some editing of the material just to remove anything that doesn't have anything to do with the trial; you know, for example, sometimes a phone will ring and someone has to go out of the room for a while, or something else happens that's just not relevant, so if you do notice any editing, you're not to draw any inference adverse to the [appellant] or speculate as to what those portions that are edited may be."

19. At the hearing of the appeal, without objection from counsel for the respondent, this Court gave leave to the appellant to lead evidence from trial counsel for the purpose of determining this ground of appeal. Trial counsel's recollection was that, at the time the judge gave the impugned direction, counsel did not realise its significance. He did not appreciate the importance until after the jury had returned its verdict. When the prosecutor interrupted, he knew that the judge had read out some excised material but did not believe that any judicial direction was necessary.  Indeed, he was concerned that a direction might cause the jury to speculate about what had been edited and why.  He was concerned to end the interruption to the court proceedings quickly so that the jurors did not think about what the judge had said or was about to say at the time the prosecutor interrupted.  He did not see the need to seek, and saw some potential danger in, an adjournment to clarify exactly what the judge had said in the impugned direction.  He decided, "on the run", to proceed without obtaining the appellant's instructions.

20. The appellant contends that the judge's error in referring the jury to the inadmissible material, followed by the prosecutor interrupting and asking the jury to leave the court room, may have led to a miscarriage of justice.  The jury may have considered that there was evidence not led at trial showing that the appellant had behaved similarly towards others and reasoned that he was therefore guilty of counts 1 and 2.  It followed, the appellant contended, that there had been a miscarriage of justice under s 668E(1) Criminal Code.

21. The appellant also applied to adduce further evidence about matters arising when the appellant was charged before a different jury on charges concerning a different complainant and on which he was acquitted on 31 July 2014. At that time there was an outburst in court by a person described as a victim advocate, Ms Susan Fajardo, a former barrister.  The transcript of the present trial shows that Ms Fajardo was also in court at this trial.  Indeed, the appellant successfully had her excluded from the court room while he and his wife gave evidence.^[4]  The further evidence sought to be led in this appeal included evidence that Ms Fajardo had a Facebook page entitled "Fighters Against Child Abuse Australia" which referred to the appellant and his wife in abusive and offensive terms from at least 5 September 2014, three days before the present trial commenced, and until after the verdicts in it were delivered.

22. The evidence concerning the earlier trial was irrelevant to this trial. There was no evidence about it before the jury.  Nor was there any evidence the jury knew anything about Ms Fajardo's inappropriate website.  Importantly, the judge gave the following direction to the jury at the commencement of this trial:

Please pay careful attention to the evidence, and ignore anything you may hear or read about the case outside of court. You may discuss the case amongst yourselves, but you must not discuss it with anybody else, and this includes by using electronic means. Do not discuss the evidence with anyone outside of your number, either face to face or over the telephone, or via social networking. It is a criminal offence in Queensland to do so.

The reason is this, that you are the 12 people who have been chosen to determine the outcome of this trial, and only on the evidence presented here in the courtroom. Do not take the risk of any external influence upon your minds. Don’t speak to anyone who’s not a member of the jury about the case, and if anyone else does attempt to talk to you, discourage them, do not tell anyone else who’s on your jury, but bring the matter to the attention of Madam Bailiff, and she’ll let me know. In the same way, if you’re outside the courtroom and you accidentally overhear something about the case, do not tell anyone else who’s on your jury, but again tell Madam Bailiff and she’ll bring that to my attention, and I’ll decide how to deal with it.

Do not attempt to investigate or to inquire about anyone involved in this case yourselves. It is inherently unjust for you to act on information which is not in evidence, and which the prosecution and defence do not know you’re acting upon. This is because they’ve not had an opportunity to test the accuracy of that information, and whether it’s even applicable to the particular person. Information in the public area, as you would know, is not always accurate, and it may be referring, for example, to someone with just a similar name or even the same name. The prosecution and the defence have not had the opportunity to test the material, as they do with other evidence. It is actually a criminal offence in Queensland to inquire in any way about a defendant, or anything to do with the trial, by searching an electronic database, internet, or getting someone else to do it for you. There have been instances where a jury has made private investigations, and mistrials have resulted, or new trials have had to be ordered on successful appeals. Hopefully this would illustrate to you the unfairness. Also private inquiries may lead to inaccuracies, for example, a scene may well have changed dramatically since the time an incident occurred."

23. The judge reminded the jury of those warnings at the end of the first day of trial.^[5]  Her Honour also made clear to the jury during the summing-up that they must decide the case solely on the evidence.

24. There was nothing in the further evidence sought to be led by the appellant to suggest the jury disobeyed the judge's directions and accessed Ms Fajardo's Facebook page.  As this further evidence could be of no assistance in the appeal, this Court, at the appeal hearing, refused the application to adduce evidence of it.  These grounds of appeal must be determined on the evidence before the jury and the trial transcript.

25. The judge's error in referring to a small portion of inadmissible evidence in the impugned direction was dealt with at the trial in an unexceptional way.  The inadmissible material was only part of a sentence and made no sense.  It is very unlikely the jury would have construed it in the way contended for by the appellant.  The prosecutor immediately interrupted the judge before her Honour said anything which might warrant a mistrial.  Defence counsel, who was best placed to contemporaneously apprehend the potential effect on the jury of what had been said, made an apparently reasonable forensic decision (admittedly, as he deposed, "on the run") not to apply for either a mistrial or a direction, but to simply ignore the slip and have the judge continue the summing-up by referring to the relevant and admissible portions of the complainant's evidence.  Trial counsel's concerns about the potential impact of the short incomprehensible piece of inadmissible evidence in the impugned direction only arose with hindsight after conviction.

26. The judge gave directions to the jury during the trial when the complainant's evidence was played to the jury and again in the summing-up to ignore the editing of irrelevant material from tape recordings and not to speculate about what had been edited.  There was no reason to consider that the jury did not follow those clear directions.  The appellant has not persuaded me that this unfortunate but minor judicial error, even if noticed by the jury, was not neutralised by her Honour's earlier directions.  The appellant has not demonstrated that jury speculation about what the appellant might have done in relation to J or something belonging to J may have contributed to the guilty verdicts.  It follows that the appellant has not established a miscarriage of justice under s 668E(1) Criminal Code: BRS v The Queen.^[6]  This ground of appeal is not made out.

The adequacy of the judge's directions as to discreditable conduct

27. The appellant's contentions in respect of the second ground of appeal are as follows. The appellant accepts that the judge's directions about the use to be made of both the complainant's evidence on count 3 following the directed verdict of not guilty, and the complainant's evidence of the uncharged act when she was changing, were adequate and appropriate. But in light of the complainant's evidence raising the possibility of an accidental touching in respect of counts 1 and 2, the appellant contends that it was critical to properly instruct the jury on these matters.  Her Honour told them what use they could make of this evidence but did not adequately warn them against propensity reasoning.  Her Honour failed to include the following crucial directions.  If the jury accepted the complainant's evidence of the appellant's discreditable conduct, they must not use that evidence to conclude he was someone who had a tendency to commit the type of offence with which he was charged.  It would be wrong to reason that if they were satisfied he did those acts on other occasions, it was therefore likely that he committed either of counts 1 or 2.

28. The judge's relevant directions were as follows:

"Now, count 3, you’ve already been directed to return a verdict of not guilty. You must disregard the evidence which went to make up count 3 as it cannot be used to assist the prosecution case in relation to counts 1 and 2. However, you may use that evidence of [the complainant's] about this incident in regards to assessing her credibility and reliability.

Now, as I said earlier, there’s two charges and you must consider each charge separately. If you find you have a reasonable doubt about an essential element of a charge, you must find the [appellant] not guilty of that charge. In addition to that evidence of the two charges, you have also heard evidence from the complainant about a time when she says the [appellant] tried to push open the door to [J’s] room whilst [the complainant] says she was getting undressed and that she saw the [appellant] look through the door at her in a reflection in the mirror. And she says – she says she told him to get out. You can only use this evidence if you accept it beyond a reasonable (sic) in the sense that the [appellant] tried to get into the room to see the complainant in a state of undress, that is, for his sexual gratification. If you do not accept it, then that finding will bear upon whether – whether or not you accept the complainant’s evidence relating to the charges before you beyond a reasonable doubt.

If you do accept the complainant’s evidence that this incident took place when she was changing and if you do accept it was accompanied by an intent to do so for sexual gratification, then you can only use that against the [appellant] in relation to the two charges before you if you’re satisfied that that evidence demonstrates the [appellant] had a sexual interest in the complainant and that the [appellant] had been willing to give to (sic) effect to that interest by getting into the room.

If persuaded of that, you may think it more likely the [appellant] did what is alleged in the two charges under consideration. If you are not so satisfied, then that evidence cannot be used by you as proof of the charges. Of course, whether this incident occurred in relation to [the complainant] changing, and if it did – whether that makes it more likely the [appellant] did the acts with which he is charged is a matter for you to determine. Remember, even if you are satisfied he tried to get into the room for sexual gratification, it does not inevitably follow that you would find him guilty of each of the two acts the subject of the charges. You must always decide whether, having regard to the whole of the evidence concerning the offences charged, whether the prosecution have established beyond reasonable doubt that the actual offences occurred.

So please remember that that evidence of the bedroom incident does come before you only for that limited purpose that I’ve mentioned and that before you can find the [appellant] guilty of either of the two charges, you must be satisfied beyond reasonable doubt that count 1 and count 2 have been proved by evidence relating to each of those particular charges. If you do not accept the complainant’s evidence relating to the incident in the bedroom, you must take that into account when considering her evidence relating to the alleged events the subject of the charges."

29. It is true that the judge did not give the direction in the terms now sought by the appellant, and that ordinarily such a direction is given in cases of this kind: R v WO^[7] and the Queensland Supreme and District Court Bench Book.^[8]  But defence counsel at trial did not seek such a direction and did not ask for a redirection in those terms.

30. That was probably because the direction given effectively conveyed the following. The jury could only use the complainant's evidence on count 3 to adversely assess her credibility and not to assist the prosecution case on counts 1 and 2. They could only use the complainant's evidence about the uncharged act concerning the appellant pushing open the door and watching her reflection in the mirror when she was undressing if they accepted that evidence beyond reasonable doubt.  If so, and if the jury accepted this was evidence of sexual gratification, it may be more likely the appellant committed both counts but it was not proof of the charges.  Throughout the summing-up, the judge emphasised that the jury could only convict on either count if satisfied beyond reasonable doubt of the appellant's guilt on the evidence of the complainant relating to each charge.^[9]  The judge also told the jury that if they had a reasonable doubt about the complainant's evidence on one count, they should consider whether their reasons for that doubt caused them to have a reasonable doubt about her evidence on the other count.^[10]

31. Although it is prudent to give a propensity direction in cases of this kind, in context the judge's direction effectively warned the jury against propensity reasoning.  Further, as this Court noted in WO, directions should be customised to the particular case and the Bench Book direction need not be slavishly followed.^[11]  The judge's directions were appropriate to the case.  I am unpersuaded that the judge's failure to give directions of the kind now contended for by the appellant has resulted in a miscarriage of justice in that propensity reasoning may have contributed to the conviction of the appellant on either count: BRS v The Queen.^[12]  This ground of appeal is not made out.

Did the judge err in not directing the jury on s 23 Criminal Code?

32. The appellant's third ground of appeal is that the judge erred in not giving the following jury direction based on Stevens v The Queen^[13] concerning s 23(1)(b) Criminal Code:

"Another possible way of viewing the allegations of indcent etreatment are that they are events that occurred by accident.  'Accident' does have a particular meaning however in the criminal law of this State.  An event, here deliberate and indecent touching, could only be regarded as an accident if the [appellant] neither intended it to happen nor foresaw that it could happen, and if an ordinary person in his position at the time would not reasonably have foreseen that it could happen.  There is evidence before you which raises the possibility of accident or which you may think raises accident as a reasonable explanation.  There is evidence that the complainant herself raised it in her account to her mother, and it is recorded in her account to her mother, and it is recorded in her account to police and evidence to the court that she considered the touching may have been an 'accident'.  The [appellant's] account of what happened in relation to the second count also concedes the possibility of 'inadvertent' contact in the manner he described.

That evidence may also raise the possibility that neither the [appellant] nor an ordinary person could reasonably have foreseen that contact of an indecent nature would have occurred in the circumstances.  Even if you reject the [appellant's] accounts that he gave in the witness box, you could find that these additional matters made accident a reasonable explanation of the contact.

This should also be said.  The [appellant] is under no obligation to prove any of these matters.  Before you can convict, you must be satisfied by the prosecution on whom the onus lies, beyond reasonable doubt, that the indecent touching was not an accident, that is, not an event which occurred as a result of an unintended and unforseen act or acts on the part of the [appellant]; and that it would not have been reasonably foreseen by an ordinary person.

Remember too, that although you cannot engage in groundless speculation, it is not necessary for an [appellant] in order to be acquitted, to establish any facts, matters or inferences from them.  You must acquit him if you think that, on the evidence as a whole, accident in the sense I have explained is a reasonable explanation for any contact with the complainant's breasts during the game in the pool or her bottom in her friend's bedroom.  As I told you earlier, you must be satisfied beyond reasonable doubt that the evidence is inconsistent with any rational conclusion other than the guilt of the [appellant].  And you could not be satisfied beyond reasonable doubt of his guilt if you think that the evidence on the whole does not negate beyond reasonable doubt accident as a reasonable explanation for inappropriate contact with the complainant."

33. The appellant contends that the evidence of either or both the complainant and the appellant raised the possibility of accidental or inadvertent touching under s 23(1)(b) on both counts.  Although neither counsel asked the judge to give such a direction, that is not fatal to an appeal if the failure has caused a substantial miscarriage of justice.  Excluding motive or the mental element of intentional indecent touching did not relieve the judge of the obligation to direct the jury as to accident under s 23(1)(b).  The judge's directions, the appellant submits, did not squarely raise the defence under s 23(1)(b) and left a key issue for the jury's consideration to be deduced by implication.

34. In discussing these contentions, it is helpful to understand the background to the relevant directions.  At the close of the prosecution evidence whilst discussing matters of law in the absence of the jury, the prosecutor asked the judge to give a direction in terms of R v Jones^[14] in light of the complainant's evidence that the touchings the subject of counts 1 and 2 could have been accidental.^[15]  (In Jones this Court held that where there is evidence capable of casting doubt upon the sexual quality of an alleged indecent assault, the motive of the accused person must be a question left for the jury's deliberation and decision.)^[16]  The trial judge noted that in a case like this it was not appropriate to leave accident as a defence.^[17]  Counsel for the appellant appeared to accede to that course and did not ask the judge, either before or at the conclusion of the summing-up, to direct the jury in terms of s 23(1)(b).

35. There is no true analogy between Stevens and this case.  In Stevens, although s 23(1)(b) was raised on the evidence in Stevens' murder trial, the possibility of an accidental shooting causing the death was not left for the jury's consideration.  By contrast in the present case, the jury were directed that they could only convict if satisfied beyond reasonable doubt the touching was indecent in the sense that it was done for sexual gratification rather than accidentally.

36. Her Honour relevantly directed the jury that to find the appellant guilty of count 1 they must be satisfied beyond reasonable doubt that the appellant touched the complainant

"on the bottom in the way she described, and, secondly, that [he] did so for his own sexual gratification, rather than for another purpose and that any touching was not merely accidental or inadvertent, but was intentional, as I say, for his sexual gratification.  And the defence case is that the [appellant] did not touch the complainant in this way."

37. In respect of count 2, her Honour told the jury that:

"In order to find the [appellant] guilty of count 2, you must be satisfied beyond reasonable doubt that [he] grabbed or – or squeezed her breast intentionally and did so for his own sexual gratification, rather than accidentally or in – or in the midst of – accidentally in the midst of playing the game in the pool."

38. The judge's directions properly placed before the jury the real issues of law and fact in the trial. They made clear that the jury could only convict the appellant on either count if satisfied on that count beyond reasonable doubt that he touched the complainant in the way she alleged with the intention of sexual gratification rather than accidentally.  The directions now sought for the first time on appeal which involve questions of foreseeability rather than intent, would not have assisted the defence and would have confused the jury.  The appellant has not demonstrated that the absence of the s 23(1)(b) direction may have contributed to the guilty verdict on either count.  I am unpersuaded this has resulted in a miscarriage of justice under s 668E(1) Criminal Code: BRS v The Queen.^[18]  This ground of appeal is not made out.

The reasonableness of the guilty verdicts

39. The appellant's fourth contention is that the guilty verdicts are "unsafe and unsatisfactory", that is, in terms of s 668E(1) Criminal Code, they are unreasonable and not supported by the evidence.  The appellant contends that the complainant's confusion as to whether the appellant's actions charged as counts 1 and 2 were accidental and her inability to exclude that possibility meant that the jury could not be satisfied beyond reasonable doubt of his guilt on either count.

40. The question for this Court in determining this ground of appeal is whether, after reviewing the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty: SKA v The Queen;^[19] M v The Queen.^[20]

41. It is true that the complainant, when telling her mother about the appellant's behaviour, stated that she was unsure as to whether it was deliberate.  The complainant also frankly conceded in cross-examination that she thought both incidents may have been inadvertent or accidental.  The appellant's evidence was that count 1, the uncharged act, and count 3 simply did not occur and that he had no recollection of count 2, but if it did occur, it was accidental and inadvertent.

42. The complainant's statement to her mother that, in her opinion, counts 1 and 2 may have been accidental conduct on the part of the appellant did not require the jury to have a reasonable doubt about whether he touched her on both those occasions for his sexual gratification. This was her explanation as to why she did not tell anyone about his behaviour until after the 2013 incidents.  Her concessions in cross-examination that the appellant's conduct may have been accidental were hardly definitive; they were those of an inexperienced girl in her early teens.

43. If the jury accepted the complainant's evidence describing the appellant's actions and rejected the appellant's evidence, as they were entitled, then the appellant's conduct as a much older adult male, sitting on a bed in a bedroom with two pre-pubescent girls using a PlayStation and squeezing and patting the complainant's "bum", was strong evidence that he had a sexual interest in her.  Even so, had that evidence stood alone, given the complainant's concession that she thought the touching may have been accidental, it may not have been sufficient for a jury to convict on count 1.  Similarly, if the evidence on count 2 stood alone, in light of the complainant's concession that the touching may have been accidental, the reasonable possibility could not be excluded that the appellant inadvertently touched the complainant on her breast in the pool during a game involving physical contact, without the intent of sexual gratification.  But according to the complainant, the touching on both occasions was more than fleeting.  He kept on squeezing and patting her "bum" (count 1).  He squeezed her breast and kept his hand there for a couple of seconds (count 2).  On the same day, he watched her reflection in a mirror as she changed.  The next day he made a joke at the pool about removing clothes.  When the whole of the evidence is considered, the jury could safely conclude beyond reasonable doubt that the appellant had a sustained sexual interest in the complainant as she moved from her pre-pubescent to her early teenage years, so that on both occasions charged as counts 1 and 2, he touched her with the intention of sexual gratification rather than accidentally.

44. After reviewing the whole of the evidence I am persuaded it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on each count. This ground of appeal also fails.

Conclusion

45. As the appellant has been unsuccessful on all grounds of appeal, the appeal against conviction must be dismissed.

ORDER:

Appeal against conviction dismissed.

46. GOTTERSON JA:  I agree with the order proposed by the President and with the reasons given by her Honour.

47. MORRISON JA:  I have read the reasons of President McMurdo and agree with those reasons and the order her Honour proposes.