R v SCE[2014] QCA 48

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  The appellant was charged with one count of maintaining an unlawful sexual relationship with a child between 20 July 1993 and 18 January 1996 (Count 1), two counts of indecent treatment of a child under 16 (Counts 2 and 7), one count of wilfully exposing a child under 16 to an indecent videotape (Count 3), one count of carnal knowledge of a child under 16 (Count 10), and five counts of incest (Counts 11, 12, 13, 14 and 15).  Counts 11 to 15 were charged and particularised as occurring after the period during which count 1 was charged as occurring.  The complainant in all counts was the appellant's step daughter.  He was convicted after a jury trial on Counts 1, 2, 3, 7, 10-13 and 15.  A directed verdict of not guilty was entered on Count 6 and he was found not guilty on Counts 4, 5, 8, 9 and 14.  He has appealed against his convictions on a number of grounds.

2. I agree with Gotterson JA's reasons for rejecting grounds 2(a), 2(b)(i) and 2(f).  I specifically note my concurrence with his Honour's observations at [72].  My obiter remarks in R v OL^[1] insofar as they correlate the meaning of "offence of a sexual nature" in s 229B Criminal Code 1899 (Qld) with the definition of that expression in s 2A Criminal Law Amendment Act 1945 (Qld)^[2] are wrong.

3. Whilst I agree with Gotterson JA that the appellant has not made out its ground 2(b)(ii), I reach that conclusion by a different path. This ground is that the conviction on Count 1 was unreasonable and cannot be supported by the evidence in that there was a failure to establish any degree of habituality or continuity of the maintenance of an unlawful relationship of a sexual nature.

4. At the relevant time, s 229B(1) Criminal Code 1899 (Qld) effectively provided:

"229B Maintaining a sexual relationship with a child

(1) Any adult who maintains an unlawful relationship of a sexual nature with a child under the age of sixteen years is guilty of a crime and is liable to imprisonment for seven years.

A person shall not be convicted of the offence defined in the preceding paragraph unless it is shown that the offender, as an adult, has, during the period in which it is alleged that he maintained the relationship in issue with the child, done an act defined to constitute an offence of a sexual nature in relation to the child, other than an offence defined in paragraph (5) or (6) of section 210,^[3] on three or more occasions and evidence of the doing of any such act shall be admissible and probative of the maintenance of the relationship notwithstanding that the evidence does not disclose the dates or the exact circumstances of those occasions…”^[4]

5. The High Court considered this provision in KBT v The Queen.^[5]  The plurality held that an alleged offender cannot be convicted unless the jury is agreed as to the commission of the same three or more acts constituting offences of a sexual nature.  Additionally, this Court has continued to hold, and trial judges routinely direct juries, as did the trial judge in the present case, that s 229B requires proof beyond reasonable doubt of sufficient continuity or habituality to justify the inference that the alleged offender maintained a sexual relationship with the child: R v DAT^[6] and R v CAZ.^[7]

6. In this case, the prosecution provided particulars of the charges, including the particulars of Count 1 relied on to establish the nature of the unlawful sexual acts constituting the relationship.^[8]  The purpose of particulars is to inform the alleged offender of the essential allegations of fact relied on by the prosecution in sufficient detail to enable the alleged offender to understand and to meet the charge.  Where separate sexual offences have not been charged but the circumstances surrounding them are relied upon to prove the element of habituality, those circumstances should be particularised to ensure that the alleged offender understands the case to be met and to ensure a fair trial.^[9]

7. The prosecution provided the following particulars as to Count 1:

"Count 1:

The [appellant] was the stepfather of [the complainant];

Between 20 July 1993 and 18 January 1996 the [appellant] maintained an unlawful relationship of a sexual nature with [the complainant];

During the period of the unlawful relationship of a sexual nature [the complainant] was between the ages of 12 and 16 years old;

During the period of the unlawful relationship of a sexual nature the [appellant] was an adult;

During the period of the unlawful relationship of a sexual nature the [appellant], as an adult, did 3 or more acts in relation to [the complainant] which constituted an offence of a sexual nature;

These 3 or more acts are particularised in Counts 2 and Counts 4 - 10."

8. Of the counts particularised as being the acts constituting an offence of a sexual nature, the appellant was convicted only on Counts 2, 7 and 10. The prosecution particularised those counts as:

"Count 2:

On a date unknown between 20 July 1993 and 1 January 1994, the [appellant] touched [the complainant] on her breasts one or more times;

[The complainant] had been giving the [appellant] a massage around this time;

On the date of this offence, [the complainant] was 13 years old in grade 8;

The offence took place at [the complainant's] home in Alexandra Hills whilst [the complainant] was under the care of the [appellant].

…

Count 7:

On a date unknown between 31 January 1994 and 1 January 1995 the [appellant] simulated sex with [the complainant] by lying on top of her and rubbing himself up and down her body;

On the date of this offence, [the complainant] was 13 or 14 years old and in grade 9;

The offence took place at [the complainant's] home in Alexandra Hills whilst [the complainant] was under the care of the [appellant].

…

Count 10:

On a date unknown between 9 March 1994 and 18 January 1996, the [appellant] had consensual sexual intercourse with [the complainant];

On the date of this offence, [the complainant] was 15 years old;

The offence took place at [the complainant's] home in Alexandra Hills whilst [the complainant] was under the care of the [appellant];

SD was staying over at the home on this night."

9. It is true that the prosecution relied on the complainant's evidence of a number of uncharged acts and other evidence as conduct tending to show the appellant had an unnatural sexual interest in her and that it gave a list of that evidence to the appellant's counsel at the commencement of the trial.^[10]  These matters, however, were not particularised as matters relied on by the prosecution as evidence to prove the element of habituality in Count 1.  The trial was conducted and the judge instructed the jury on the basis of the particulars provided in Count 1.  The judge's directions to the jury as to Count 1 and the evidence of uncharged acts rightly did not invite the jury to consider the uncharged acts in determining whether the prosecution had proved beyond reasonable doubt the habituality element of Count 1.

10. It follows that, in convicting the appellant on Count 1, the jury were satisfied beyond reasonable doubt that the element of habituality was solely that demonstrated by Counts 2, 7 and 10. There is no reason to consider and it is not submitted that the judge sentenced the appellant on any different basis. This means that the evidence to prove the element of habituality in Count 1 was as follows: that between July 1993 and January 1994 he touched her breasts when massaging her (Count 2); that between January 1994 and January 1995 he had simulated sex with her, rubbing himself up and down against her body (Count 7); and that between March 1994 and January 1996 they had consensual sexual intercourse (Count 10). These acts, particularly Count 10, were much more serious and invasive than the acts in R v DAT^[11] which this Court found did not establish habituality.

11. The acts in Counts 2, 7 and 10 suggest that the least serious Count 2 was grooming at the beginning of the relationship in the second half of 1993; that the more serious Count 7 evidenced the continuing escalation of the relationship at some point in 1994; and the most serious Count 10 evidenced the high point of the relationship whilst the complainant was a child with full sexual intercourse some time between March 1994 and early 1996. Although only three discrete acts over less than 18 months, they demonstrated sufficient continuity to allow the drawing of an inference of a developing and continuous relationship so that it was a jury question whether the prosecution established the element of habituality beyond reasonable doubt.  The judge correctly directed the jury that before they convicted on Count 1 they must be unanimous as to not only the three acts constituting offences of a sexual nature but also that the relationship between the appellant and complainant involved some habituality, regularity and continuity.  The evidence considered as a whole was sufficient to allow the jury to be satisfied of the element of habituality beyond reasonable doubt: M v The Queen (1994) 181 CLR 487, 493-495; SKA v The Queen (2011) 243 CLR 400, [12].

12. For those reasons, I consider the appellant has not made out ground 2(b)(ii). As the appellant has not succeeded on any ground of appeal, his appeal against conviction should be dismissed.

13. GOTTERSON JA:  After a trial over seven days in the District Court at Brisbane, the appellant, SCE, was found guilty on 7 May 2013 on one count of maintaining an unlawful sexual relationship with a child:  Criminal Code (“Code”) s 229B(1) – Count 1; two counts of indecent treatment of a child under 16 years of age:  Code ss 210(1)(a) and (4) – Counts 2 and 7; one count of wilfully exposing a child under 16 years of age to an indecent video tape without legitimate reason:  Code ss 210(1)(e) and (4) – Count 3; one count of carnal knowledge of a child under 16 years of age:  Code ss 215(1) and (4) – Count 10; and four counts of incest:  Code ss 222(1)(a) and (b) – Counts 11, 12, 13 and 15.  The convictions on Counts 1 and 7 were by majority verdict after a Black direction had been given.  For all counts, the complainant was the appellant’s stepdaughter.

14. The appellant was acquitted of two counts of carnal knowledge of a child under 16 years of age – Counts 4 and 5; one count of indecent treatment of a child under 16 years of age – Count 8; one count of wilfully and unlawfully exposing a child under 16 years of age to an indecent act – Count 9; and one count of incest – Count 14. Each of these counts concerned the same complainant. There was a directed acquittal on one further count of indecent treatment in circumstances where it was uncertain whether the charged act had occurred in Queensland – Count 6.

15. On 10 May 2013 the appellant was sentenced to five years imprisonment for the maintaining offence and to a shorter period of imprisonment for each of the other offences of which he was convicted. All terms of imprisonment are to be served concurrently. A parole eligibility date of 6 November 2015 was set.

16. The complainant was born on 18 January 1980. Her mother married the appellant in October 1992 having met him in 1990. They, together with the complainant’s grandmother, moved into a house at Alexandra Hills.  At that time, the complainant was towards the end of Year 7 at school.  She entered secondary school in 1993.

17. Count 1 was alleged to have been committed at Alexandra Hills and elsewhere in Queensland between 20 July 1993 and 18 January 1996, the date of the complainant’s sixteenth birthday.  Each of Counts 2 to 5 and 7 to 10 inclusive concerned conduct alleged to have occurred on a date unknown over a shorter period of time than that for Count 1, but between the dates within the period nominated in that count.  For all of these counts except Count 9, the offending was alleged to have occurred at the family home at Alexandra Hills.  By contrast, each of Counts 11, 12 and 13 were alleged to have occurred on a date unknown when the complainant was 18 years old, Count 14 on a date unknown when she was 18 or 19 years old, and Count 15 on a date unknown when she was 20 years old.

Grounds of appeal

18. The appellant has appealed against his convictions. The notice of appeal filed on 4 June 2013 lists some seven grounds of appeal.  At the hearing of the appeal, several grounds were abandoned and others reformulated in order to accord with the appellant’s written outline of argument.  It is convenient to consider the reformulated grounds of appeal in the order in which they were advanced by counsel for the appellant at the hearing.

Ground 2(b)(ii) – proof of habituality for maintaining count

19. This ground of appeal concerns the conviction on the maintaining count only which was sanctioned by the head sentence of five years imprisonment. Section 229B of the Code which criminalises maintaining an unlawful relationship of a sexual nature with a child under 16 years of age, was enacted in 1989.  At all times during the period nominated in Count 1, s 229B(1A) provided as follows:

“A person shall not be convicted of the offence defined in subsection (1) unless it is shown that the offender, as an adult, has, during the period in which it is alleged that the offender maintained the relationship in issue with the child, done an act defined to constitute an offence of a sexual nature in relation to the child, other than an offence defined in section 210(1)(e) or (f), on 3 or more occasions and evidence of the doing of any such act shall be admissible and probative of the maintenance of the relationship notwithstanding that the evidence does not disclose the dates or the exact circumstances of those occasions.”^[12]

(The offence alleged in Count 3 was one defined in s 210(1)(e).  None of the other alleged offences was one defined in either that section or s 210(1)(f).)

20. Speaking of the elements of the offence in R v K (No 2),^[13] Mackenzie J (with whom Macrossan CJ and Pincus JA agreed) observed:

“The offence created by s 229B is unusual in that it combines the requirements of proving at least some degree of habituality (maintaining a sexual relationship) and of proving at least three acts constituting an offence of a sexual nature, committed during the period over which it is alleged that the sexual relationship was maintained.  Both these elements must be proved beyond reasonable doubt.  The offence is neither an offence completed upon the commission of three discrete acts of a sexual nature, nor an offence defined solely in terms of a course of conduct or state of affairs.  It combines elements of both.”^[14]

21. It is common ground that the prosecution relied on the offending alleged in each of Counts 2 and 4 to 10 as an act for the purpose of satisfying the element of the s 229B(1A) offence that it be shown that an act defined to constitute an offence of a sexual nature in relation to a child under 16 years of age, had been carried out by the appellant on three or more occasions.  It is convenient to refer to this element as the three or more acts element.  It may be noted that at a pre-trial hearing, the learned judge had ruled that the prosecution “not be permitted to rely on evidence of uncharged acts to found three or more offences of a sexual nature necessary to prove the charge of maintaining”.^[15]

22. The jury convicted on three of the counts on which the prosecution relied, namely, Counts 2, 7 and 10. By virtue of that circumstance, the prosecution had shown three acts of the kind required by the section, thus satisfying that element of the offence.

23. This ground of appeal concerns the habituality element of the offence. The appellant’s argument advanced in oral submissions consists of two limbs. First, there is the proposition that for proving that a sexual relationship was maintained, the prosecution was confined to those acts the subject of Counts 2, 7 and 10.^[16]  It was submitted that “once the acts in respect of which all members of the jury must be agreed, are determined, the next question is to consider whether those acts point to a sufficient degree of habituality”.^[17]

24. The second limb of the argument is that the relevant acts – a grabbing of the breast (Count 2), an act of “dry humping” (Count 7), and an act of carnal knowledge (Count 10) were insufficient to establish the degree of habituality necessary to constitute the maintaining of a sexual relationship. Reference was made to the decision of this Court in R v DAT^[18] in this context.

25. The appellant cited no authority for support, at a level of general principle, of the proposition in the first limb of the argument. That is unsurprising given that in K (No 2), each of the members of the court had clearly stated that the scope of evidence admissible to prove the maintaining extends beyond the specific acts relied upon for the count.  Macrossan CJ observed:

“Dealing with the matter more broadly, the central element of the general offence is the proof of the existence of an unlawful relationship of a sexual nature during the period alleged.  The relationship does not have to be proved exclusively by independent proof of three or more specific sexual offences of the requisite kind.  That last requirement is, in effect, made an additional element of the offence.

In the general aspect of its case, the Crown will have to prove that between the complainant and the accused there existed a relationship which had an unlawful sexual nature.  Use of the term “relationship” implies a continuity of contact in which both parties are involved; the sexual element will be the particular character of the relationship which will appear.  Evidence of conduct occurring between the two parties, if it pointed to the existence of a sexual character in their relationship during the specified period, would be direct evidence of an aspect of this offence.  Of course, in the end, it has to be an unlawful relationship which is shown and that must be a relationship which includes unlawful sexual acts.  But the conduct to be relevant and admissible does not have to be restricted to specific sexual offences.  Proof of conduct going to show in a more general way the sexual nature of the relationship or the continuity of such a relationship will be a step along the path of proof by the Crown.  Such evidence is not propensity evidence or similar fact evidence subject to the particular rules of exclusion which apply to evidence of that kind, although it could be fair to describe it as context evidence which assists in proof of the necessary sexual element.

Conduct that is direct evidence of part of the pattern which has to be shown namely a prevailing relationship of a sexual nature is admissible and if it goes so far as to reveal a sexual offence it will be direct evidence of a further part of what has to be shown, namely an unlawful relationship.  In either case, with other similar evidence, it will go in proof of the element of continuity which is involved in maintaining a relationship.”^[19]

26. To similar effect, Pincus JA said:

“It is equally clear that the Crown is not confined, in attempting to prove the relationship, to adducing evidence of acts such as are mentioned in subs (1A); evidence of various kinds may go towards the requisite proof.  A simple example is evidence of a statement by the accused tending to show a sexual passion for the child.

…Where what has to be proved is not just a single incident, or three incidents, but a s 229B relationship – a situation subsisting over a period of time – acts of the accused tending to show a “guilty passion” at relevant times are directly relevant; in court as in ordinary life, one deduces that two people have a sexual relationship with one another, wholly or in part from evidence that they engage in acts characteristic of such a relationship.

A question was raised before us as to the relevance of the notion of propensity evidence to charges under s 229B.  If a man is charged with having the relationship prohibited by s 229B, then evidence that, for example, he used from time to time touch the complainant in a sexual way does not get in as propensity evidence: it is simply evidence going to prove the case sought to be made – that there was a sexual relationship.  Such evidence is relevant whether or not, were an offence other than one under s 229B in issue, the evidence would pass the tests for admission of propensity evidence, now authoritatively laid down in Pfennig.^[20] ”^[21]

Mackenzie J made observations to similar effect at 518-519.

27. Notwithstanding what was said in K (No 2), at the hearing of the appeal, counsel for the appellant advanced two reasons for the argument that the scope of evidence on habituality which the jury was entitled to consider, was limited to the offending referred to in the three counts on which they convicted.

28. One reason arises from the dual circumstances that conduct of the appellant beyond that which constituted Counts 2 and 4 to 10 had not been detailed as particulars of Count 1 in the five-page particulars document^[22] provided by the prosecution, and that whereas other conduct had been listed in a single page document headed “Conduct tending to [show] a sexual interest”,^[23] according to the appellant, evidence of such conduct had been adduced at the trial as propensity evidence only^[24] and not as evidence of the habituality element of the offence.

29. The other conduct of which evidence was adduced may be illustrated by reference to the complainant’s testimony that after the first occasion, the appellant had sexual intercourse with her “quite regularly, at least weekly, sometimes probably more than once a week at times”^[25] and that it continued quite regularly for most of Year 9 and Year 10, becoming more sporadic in Year 11 and ending at the beginning of Year 12.^[26]  She could not recall her mother being at home when she had sexual intercourse with the appellant.^[27]  In the course of summing up, the learned trial judge also referred to evidence of other conduct on the part of the appellant given by the complainant.^[28]  That evidence related to massaging^[29] and conversations about sexual matters.

30. In considering this reason, it need be borne in mind that the reference to Counts 2 and 4 to 10 in the particulars of Count 1 was specifically for the purpose of particularising the three or more acts relied upon by the prosecution. The particulars also stated that between 20 July 1993 and 18 January 1996, the appellant maintained an unlawful relationship with the complainant; that it was of a sexual nature; that during the period of the relationship, the complainant was between 12 and 16 years of age; and that the appellant then was an adult.  The particulars did not detail facts on which the prosecution proposed to rely in order to prove the relationship.  No objection was taken to the particulars in this respect.

31. As K (No 2) establishes, the evidence given by the complainant to which I have referred was admissible with respect to the issue of whether there was a sexual relationship between the appellant and the complainant.  Neither its relevance nor its admissibility for that purpose is diminished by the circumstance that it was also admissible as propensity evidence to which the jury might have had regard in considering the other counts.  The circumstance that the conduct was listed in the one page document as tending to show a sexual interest did not confine the uses to which evidence of that conduct might have been made, to use as propensity evidence only.  It did not preclude reliance upon that evidence in order to establish the habituality element of the maintaining offence.  Her Honour, correctly, in my view, did not direct the jury that the sole use that they could make of this evidence was as propensity evidence in respect of the other counts.^[30]

32. The other reason advanced was that generalised evidence of sexual misconduct “creates the situation where there is no way of determining whether that type of evidence was accepted by the jury beyond reasonable doubt”.^[31]  I cannot accept that reasoning as valid.  The reasoning implies that it is only evidence which the jury has accepted as proving each of the three or more acts beyond reasonable doubt, as manifested by findings of guilt on other counts based on such acts, that may found a finding by the jury beyond reasonable doubt that the requisite relationship existed.  It is clear from the observations in K (No 2) to which I have referred that for the habituality element of the offence, the jury may have regard to relevant evidence probative of the relationship free of any precondition that it have first been accepted by them as proving beyond reasonable doubt the three or more acts element of the offence.

33. I therefore reject both of the appellant’s reasons for confining the evidence on which the prosecution was able to rely for proving the habituality element of the offence. Thus I also reject the proposition in the first limb of the appellant’s argument on this ground of appeal.

34. The second limb of the appellant’s argument is, of course, dependent upon acceptance of the proposition in the first limb. In view of the rejection of that proposition, it is unnecessary to consider the second limb at any length. I would, however, note my view that the evidence of an unlawful relationship relied upon by the prosecution in DAT is not comparable with that here.  In that case, the evidence was of “seven fleeting incidents of improper touching, some outside the clothing, over five years”.^[32]  Here, the convictions indicate that the jury evidently accepted that the appellant had acted in a much more extensive and intrusive way: he had grabbed the complainant’s breast; he had carried out an act of simulated intercourse with her; and he had had carnal knowledge of her.

35. For these reasons, this ground of appeal cannot succeed.

Grounds 2(a), 2(b)(i) and 2(f) – challenge to verdict on Count 10

36. This ground of appeal is that the guilty verdict on Count 10 is unreasonable. If this ground succeeds and the conviction on that count is set aside, then consistently with a pre-trial ruling,^[33] the conviction on Ground 1 would also be set aside on the basis that only two, and not three, acts defined to constitute an offence of a sexual nature, would have been proved beyond reasonable doubt.

37. The appellant’s argument is that the jury did not act reasonably in convicting on Count 10 and acquitting on Counts 4, 5, 8 and 9. To put it another way, the appellant submits that the conviction on Count 10 is inconsistent with the acquittals on those other counts.

38. The test for inconsistency is one of logic and reasonableness.^[34]  If there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, the test is satisfied and the verdicts are upheld.^[35]  Such a reconciliation may be arrived at by having regard, for example, to differences in the quality of the evidence, the existence of contradictory evidence which does not necessarily damage the witnesses credibility, or the absence of supporting evidence on some counts.^[36]

39. Counts 4, 5 and 10 were each of unlawful carnal knowledge of a child under 16 years of age. The complainant’s evidence was that Count 4 occurred when she was “somewhere between 13 and 14”, and when she was in Year 8 and Year 9.^[37]  Her evidence was that she and the appellant had sexual intercourse on the lounge room floor.  It was the first time that they had had sexual intercourse.  The appellant placed a towel on the floor.  He told her to lie down on it and then removed the lower half of her clothing.  She was still wearing a tee shirt and a bra.  He had been wearing shorts and a tee shirt.  She could not remember whether he took his clothes off.  He lay down on top of the complainant and put his penis in her vagina and started having intercourse.  She was tense.  She “indicated” to the appellant that it was painful.  Afterwards she went and had a shower.^[38]

40. With respect to Count 5, the complainant testified to the effect that she and the appellant had sexual intercourse on the couch in the living room. He was wearing a tee shirt.  It was not long after she had gone on the pill.  This was the first occasion on which he ejaculated inside her.^[39]  She thought she was 14 years old at the time and in Year 9.^[40]  The complainant’s general practitioner, Dr Ho, gave evidence that she prescribed the pill for the complainant on 10 March 1994.^[41]

41. For Count 10, in her evidence-in-chief the complainant identified the occasion as one when a friend of the appellant, SD, was staying over for the night. Mr SD wanted to go to bed early on the couch in the living room.  She and the appellant went to the other end of the house to watch television.  The bedroom used by the complainant’s mother and the appellant was at that end of the house.  The appellant and the complainant had sexual intercourse in the bedroom.  The complainant then ran out to check to make sure that Mr SD was asleep, which he was.  She then had a shower and went to bed.^[42]  The complainant’s answers to questioning in cross-examination were consistent with the account she had given in evidence-in-chief.^[43]  She was cross-examined at some length to the effect that she checked on Mr SD because she would have been embarrassed if he had heard her and the appellant having sex.^[44]

42. Mr SD testified in the prosecution case.  He said that he would visit the appellant’s home once or twice a week at nights.  The adults would drink and occasionally he would stay the night, sleeping on the couch.  He said that “most of the time” the complainant’s mother was there and that he could not recall a night when she was not at the house.^[45]

43. The appellant submits that in circumstances where the complainant’s accounts of each of the three acts of intercourse were given in some detail, there was no logical reason for the jury to have been satisfied beyond reasonable doubt with respect to one of them and not the other two. The respondent points to the fact that the circumstances of Counts 4 and 5 may be distinguished from those of Count 10 in that the latter involved the presence of a third person, Mr SD, at the house. His evidence did not corroborate the complainant’s account that sexual intercourse had taken place; nor did it undermine.

44. I would accept that the jury may have regarded that fact together with the complainant’s evidence that she went to check that he was asleep, reinforced as it was in the jury’s mind by the cross-examination, as affording a particular reliability to the accuracy of her account of this occasion. Nevertheless, it is not so clear why they would not have regarded her evidence that Count 4 was the first act of sexual intercourse and that Count 5 was the first occasion when he had ejaculated inside her as not also affording reliability to her accounts of these events in view of their singularity.

45. Why the jury reached the verdicts they did is also open to explanation by reference to the way in which the counts were particularised. On the indictment Count 4 was stated as having occurred on a date unknown between 20 July 1993 and 1 June 1994. However, in the particulars document that time span was narrowed to between 20 July 1993 and 1 January 1994.^[46]  This document was provided to the jury.  During the whole of the narrowed time span, the complainant was 13 years old.  However, as I have noted, her evidence was that the relevant act of sexual intercourse happened when she was somewhere between 13 and 14 years old in Years 8 and 9.  It is therefore quite possible that the jury were not satisfied that the act took place within the particularised time span.  An acquittal for that reason would be logically sustainable.

46. Count 5 was particularised as having occurred on a date unknown between 9 March 1994 and 1 January 1995 when the complainant was “13 or 14 years old in Grade 9”.  The complainant was, in fact, 14 years old for the whole of the period between those two dates.  It is possible that the particularisation of her being 13 or 14 years old was regarded by the jury as introducing an element of confusion into the prosecution case and that that, coupled with the element of vagueness in the complainant’s evidence that she “thought” that she was 14 at the time, left the jury uncertain whether the count had been proved beyond reasonable doubt.

47. No similar difficulty arose with Count 10. The indictment nominated a much longer period of time from 9 March 1994 to 18 January 1996. The complainant was 14 and then 15 years of age during that period and in Year 9 and then Year 10. Her evidence was that this act occurred during the period nominated in the indictment.^[47]

48. In view of the foregoing considerations, I incline to the view that the conviction on Count 10 can be reconciled with the acquittals on Counts 4 and 5. I now turn to Counts 8 and 9.

49. Count 8 was of indecent treatment of a child under 16 years of age by exposing the complainant to an indecent act, namely, his masturbating himself. The acquittal on this count is readily explicable by inconclusiveness in the complainant’s evidence on the matter. In evidence-in-chief, she said that she and the appellant were in bed together under a blanket. She asked him to rub himself against her. She did not describe any action on the appellant’s part which she observed. Her evidence was no more than that there was movement under the blanket and that she thought he was masturbating. She was touching herself at the time.^[48]

50. Count 9 concerned another allegation of indecent treatment by rubbing the complainant in the genital area on the outside of her clothing. It was alleged to have occurred on a houseboat during the daytime when others, including the complainant’s mother and stepsister, were aboard. The complainant’s evidence was that she and the appellant were seated on a long bar chair in the kitchen area. She was sucking his big toe. The appellant had his other foot placed in between her legs and was moving his foot about. It touched her vaginal area. He was moving his foot backwards and forwards from it.^[49]  No evidence was given by the complainant as to how her vaginal area was touched or to what degree it was touched.  The acquittal on this count is explicable on the basis that the jury may not have been satisfied beyond reasonable doubt either that the event took place given that it was said to have occurred in the open and when other family members were on board, or that the touching was indecent.

51. In my view, the appellant has failed to demonstrate that the guilty verdict on Count 10 was unreasonable.  This ground of appeal cannot succeed.

Ground 2(f) – miscarriage of justice

52. The appellant submits that there was a miscarriage of justice with respect to his conviction on Counts 1, 2, 3, 7 and 10 with the consequence that s 668E(1) of the Code would require this Court to allow the appeal and set aside those convictions.  At the hearing, counsel for the appellant explained that there were four components to this argument.  They may be compendiously identified as relating respectively to:

1. the jury inquiry;

2. Dr Ho’s medical notes;

3. the emails; and

4. no case to answer on Counts 2 and 4 to 10.

53. The jury inquiry:  During the course of deliberations, the jury informed the learned trial judge by a note that they were seeking guidance on Counts 3, 7, 9 and 10.  Her Honour was told in open court that they were having trouble agreeing on each of those four counts.^[50]  She then proceeded to give a Black direction with respect to majority verdicts.

54. The appellant’s submission is developed from the fact that neither the note nor the statement in open court on behalf of the jury referred to Count 1. It is argued that having regard to the counts on which the jury acquitted, by the time the jury sought guidance they must have agreed on only two of the counts in the particulars of the acts for Count 1, namely, Counts 2 and 4. The omission to refer to Count 1, it is said, suggests that they were already agreed that they would convict on Count 1 under the misapprehension that agreement on Counts 2 and 4 was sufficient for that element of the maintaining offence. An elaboration of the argument is that, alternatively, there was no misapprehension as to that element of the offence, but instead the jury misapprehended that proof of any three of the counts was, of itself, sufficient proof of the habituality element.

55. The appellant’s submission depends upon inference. I am not prepared to infer that the jury acted under either of the misapprehensions to which the appellant alludes. The course of events strongly suggests otherwise. The jury had been clearly directed with respect to the elements of the maintaining offence.^[51]  They were directed that the prosecution relied upon the offences alleged in Counts 2, 4, 5, 7, 8, 9 and 10 to prove the three or more acts element of the offence.^[52]  By then, Count 6 had been withdrawn from the jury.  The jury indicated an impasse over four of those counts.  After receiving the Black direction, by majority they decided to convict on one of them, Count 7.  That opened the way for a consideration of Count 1 on which they also decided to convict by majority.  The absence of a reference to Count 1 in the note is readily explicable by the jury’s not having come to consider that count, and hence not being at an impasse over it, by the time they sought guidance.

56. Dr Ho’s notes:  In relation to Count 15, the complainant testified that when she was 20 years old she had sexual intercourse with the appellant at the Novotel Hotel in Brisbane whereupon she fell pregnant.^[53]  In cross-examination, she said that she obtained a referral from Dr Ho for an abortion.  It was put to the complainant that she did not consult Dr Ho about the matter.  She said that she did.^[54]  Dr Ho’s notes adduced at the trial did not contain a reference to her having referred the complainant for an abortion.  Dr Ho said that had that occurred, she would have noted it.^[55]

57. The appellant testified in his defence on the fourth day of the trial. His counsel then addressed the jury followed by the prosecutor who addressed up to the end of that day. In the course of addressing the jury on defence attacks on the complainant’s credit, the prosecutor said:

“And then, in relation to count 15 – oh, sorry – yes, count 15, they attack her by saying that Dr Ho didn’t have notes, and I think my learned friend put this too high, too positively.  He effectively said that the notes are very telling.  Well, that’s not the case.  The notes aren’t telling.

It’s not like there’s a note there saying, “This person did not come and see me and get a prescription for an abortion.”  There’s just one note.  So it’s the absence of the note which he says is telling, because you would think that ordinarily there would be a note of it.  Well, the important thing is that notes and records get lost.  That would be within your commonsense in your worldly experience.  That may have occurred here.  The important thing is that, even on his own evidence, at the time, soon after count 15, she approached him, phone him, and, on his account, demanded money for an abortion.  Doesn’t that support her account, whether or not the doctor has those notes?  The doctor had the notes in relation to the pill, so in relation to that count of the pill, we know exactly the date, March two thousand – sorry, 1994, when she went onto the pill.

We don’t have, unfortunately, the notes.  A lot of time has passed.  They could have been lost.  That should not, I would suggest, raise any particular doubt in relation to her evidence, just because a note which would have assisted the Crown wasn’t found.  It is not something that they can say is a note that proves it didn’t happen, I would suggest to you.”^[56]

58. On the following day, defence counsel objected that the jury had been invited to speculate that notes of Dr Ho had been lost as an explanation for the absence of a reference to a referral in them.  The point was made that there was no evidence about any loss of notes.^[57]  In developing the submission, the appellant next refers to the following statement made by the prosecutor on the matter:

“… [M]y learned friend has misunderstood or misquoted what I said to the jury on that point, and that is, I wasn’t asking them to speculate, but that there were no notes found and that it was within – it may be within their commonsense and worldly experience to realise that notes do on occasion get lost, that that might be an explanation for why the notes wasn’t (sic) there.”^[58]

59. The appellant submits that the evidence of Dr Ho was critical to credit observing that “it would be surprising if it was possible to conclude that the complainant was mistaken in respect of the attendance at Dr Ho’s surgery”.

60. A consideration of this component of this ground of appeal must also take into account that upon re-reading Dr Ho’s evidence, the learned trial judge agreed that the jury had been asked to speculate. She rejected the prosecutor’s protestation that he had not invited the jury to speculate.^[59]  In response to a request from the appellant’s counsel that she comment to the jury on the matter, her Honour indicated that she would do so.  In the course of summing up, her Honour summarised Dr Ho’s evidence on the topic and then directed the jury as follows:

“And during the course of the address Mr Spinaze invited you to think that the notes had been lost but this is where you have to be precise.

There is no evidence. There is no evidence about the security. There is no evidence about how the notes are kept. And that would be in the realm of speculating because all you know is that there is no note there. So you should not speculate or use your intuition.”^[60]

61. In my view, no miscarriage of justice arose from what the prosecutor said to the jury in his address. The appellant admitted that the act of intercourse had taken place at the Novotel Hotel. He did not dispute that the complainant had become pregnant. He also admitted that he paid her money for an abortion.^[61]  The absence of a reference to a referral in Dr Ho’s notes went to the reliability of the complainant’s testimony.  It was in no sense critical to her credibility.  The learned trial judge dealt with the issue adequately by way of direction.

62. The emails:  The complainant was cross-examined with respect to some five emails which she had sent to the appellant during the period between 30 May 2008 and 3 March 2009 when she was not living in Brisbane.^[62]  The emails were written in a familial style.  Their contents related to current events concerning herself, her fiancé and their young son, photographs of whom were attached to some of the emails.  The appellant contrasts these emails with the fact that in cross-examination, the complainant agreed that after the abortion she was very angry with the appellant and said to him:

“You have ruined my life.  You are a sicko.  Why did you do it?”^[63]

63. For this component of the ground of appeal, the appellant submits that what the complainant told the appellant on the one hand and the contents of the emails on the other are contradictory and that in light of the contradiction, it was not open to the jury to be satisfied beyond reasonable doubt on the counts on which they convicted.

64. In re-examination, the complainant stated that when she wrote the emails the appellant was still married to her mother. She did not want anyone to find out about the relationship she had had with the appellant which could result in breaking up the family. For those reasons she continued to act as if he were a “father figure” despite her anger.^[64]  In summing up, the learned trial judge observed that allowing for the fact that people behave differently in response to circumstances, the emails were something “you would not expect to see happen”.^[65]

65. It was a matter for the jury what they made of the complainant’s explanation of the emails. The explanation was not implausible. The pregnancy had happened about eight years earlier and her mother and the appellant were still married. In these circumstances, the appellant’s proposition that there was contradiction in the complainant’s behaviour and that it was of such a degree as to preclude a finding of guilt on any of the counts, is one that verges on the fanciful and cannot be accepted.

66. No case to answer on Counts 2 and 4 to 10:  At the trial, the learned trial judge rejected a submission by the appellant that he had no case to answer on Counts 2 and 4 to 10.  The submission, which is renewed upon appeal, depends upon both construction of the joinder provisions in s 229B and the way in which the three or more acts for Count 1 were particularised.

67. At all relevant times, s 229B contained the following provisions:

“(2)A person may be charged in 1 indictment with an offence defined in subsection (1) and with any other offence of a sexual nature alleged to have been committed by the person in the course of the relationship in issue in the first mentioned offence and the person may be convicted of and punished for any or all of the offences so charged.

(2A)However, where the offender is sentenced to a term of imprisonment for the first mentioned offence and a term of imprisonment for the other offence an order shall not be made directing that 1 of those sentences take effect from the expiration of deprivation of liberty for the other.”

68. Section 229B(2) permits joinder in the one indictment of a maintaining offence and any other offence of a sexual nature alleged to have been committed in the course of the maintaining relationship. The appellant submits that the expression “any other offence of a sexual nature” is to be read as exclusive of any such offence, the underlying act or acts for which is also relied upon for proof of the maintaining offence. The appellant further submits that because the acts constituting the offences alleged in Counts 2 and 4 to 10 were also relied upon to prove the three or more acts element of the maintaining offence, the appellant was improperly charged in the same indictment with the several offences alleged in those counts and had no case to answer in respect of them.

69. The appellant’s argument on the construction of the expression is centred upon the word “other” in it. To give that word work to do, it is said, the expression must be read in a qualified way and as referring to offences other than those constituted by an act or acts also relied upon for the maintaining offence. An offence against ss 210(1)(e) or (f) was cited as an example of permissible joinder because an act or acts constituting such an offence may not be relied upon to prove the three or more acts element of a maintaining offence.^[66]

70. Against the appellant’s construction is that s 229B(2) speaks of joinder of offences without reference to the act or acts that might constitute them.  The expression is therefore apt to mean an offence of a sexual nature alleged to have been committed by the same offender during the relationship, other than the maintaining offence, without regard to commonality to that offence and to the maintaining offence of an act or acts.  To my mind, that is the ordinary and natural meaning of the expression.  It does not import any implied qualification upon the language of the section.  Consistently with the canons of statutory interpretation, it is the meaning to be adopted unless permissible aids to construction indicate that some other meaning was intended.  The appellant has not identified any aid to construction which persuasively points to another meaning as the intended one.

71. I would observe that the proviso in s 229B(2A) supports this construction.  In preventing cumulative sentences when there is a joinder, this provision anticipates joinder of offences where the acts constituting them also constitute the three or more acts element of the maintaining offence and offers substantial protection to the accused where this occurs in the event of conviction.  If the joinder provision were qualified in the way the appellant contends, there would be no apparent justification for discriminatory legislation against cumulative sentences in that particular circumstance.

72. There is one other aspect to this component that I wish to mention. In the course of oral argument, the appellant sought to rely on a definition of “offence of a sexual nature” in s 2A of the Criminal Law Amendment Act 1945 inserted by amendment in 1946.  In support of the application of that definition to the Code, reference was made to an observation to that effect in R v OL^[67].

73. I wish to express my view that that definition is not applicable to the Code.  Firstly, the definition commences with the words “in this Act”, thereby limiting its application to that Act.  Secondly, the provision in the definition that it is to be read as one with the Code and the Justices Act 1886^[68] identifies offences in those two statutes as offences for the purpose of the definition.  However, it does not operate to apply the definition to those statutes.

74. For these reasons, I am of the view that the four components on which the appellant relies for this ground of appeal, viewed singly or collectively, do not establish a miscarriage of justice.  This ground of appeal also fails.

Disposition

75. Since none of the appellant’s grounds of appeal has succeeded, this appeal itself fails.

Order

76. I would propose the following order:

1. Appeal dismissed.

77. MORRISON JA:  I have had the advantage of reading the draft reasons of the President and Gotterson JA.

78. I agree with the reasons of Gotterson JA.  However, I also agree with the President’s conclusion in paragraph [11], that the acts in counts two, seven and 10 were sufficient, in themselves, to demonstrate the requisite degree of habituality for the purpose of establishing the offence.

79. I agree that the appeal against conviction should be dismissed.