R v MCJ[2017] QCA 11

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  I agree with Henry J’s reasons for allowing the appeal against conviction, quashing the convictions and ordering a retrial.
2. GOTTERSON JA:  I agree with the orders proposed by Henry J and with the reasons given by his Honour.
3. HENRY J:  The appellant was convicted by a jury of one count of maintaining a sexual relationship with a child with a circumstance of aggravation, three counts of indecent treatment of a child under 12 under his care, five counts of indecent treatment of a child under 12 and four counts of rape.
4. He appeals his conviction on two grounds, each relating to directions of the learned trial judge about which his counsel did not complain at trial.  Those grounds are:
   1. His Honour erred in failing to direct the jury about the relevant circumstances to be taken into account when scrutinising the evidence of the complainant in accordance with Robinson v The Queen.^[1] (“Ground 1: Adequacy of the warning”)
   2. His Honour erred in directing the jury, over objection, that a note the complainant had written in 2003 could be used in proof of the relationship between the appellant and complainant.  (“Ground 2: The direction about the note”)

Facts

5. The complainant in respect of all except one of the charges was the appellant’s niece.  She was born on 20 September 1990 and was aged from five to 11 years old (inclusive) during the period alleged in the maintaining charge.  The complaint to police which resulted in the charges and trial occurred in 2014 when she was 23, about 12 years after the end of the offending period.
6. The complainant’s mother and the appellant’s wife were sisters.  The complainant’s family used to visit the household of the appellant’s family at Springwood every second Sunday when the complainant was aged three and four.  The appellant had a photography studio in the downstairs garage at that address.  The complainant testified she was on occasion left in the appellant’s care when her mother and aunt were taking self-defence classes in this era.  She testified of “flashback” recollections of the appellant looking under her skirt in the photo studio when she was aged about four, an era prior to the period of the charges.
7. The appellant’s family moved in about 1996 to another house at Springwood that the complainant visited with her family when she was aged about six and seven, again every second Sunday.  There was also a photography laboratory downstairs at this address.  They would stay for the afternoon and sometimes dinner.
8. On one such occasion the accused took her to his photography laboratory at that address, purportedly to show her how photographs were developed.  He took her into the dark room and closed the door.  He took her pants off and, as she put it:

“I didn’t know…what it was at the time, but he did perform oral sex on me, and he rubbed the outside of my vagina with his finger.”

9. She explained the oral sex involved him licking the outside of her vagina and putting his tongue inside her vagina.  They subsequently returned upstairs, rejoining the family members.  This event attracted count 3 on the indictment, indecent treatment of a child under 12.  In evidence-in-chief she said it was her first memory of the appellant doing anything to her at Springwood.
10. The complainant testified he did the same thing to her at the appellant’s Springwood address on “pretty much” every occasion she went there.  She explained it occurred four times in the dark room and the rest of the time in a shed at the rear of the property.  She recalled he told her that if she told anyone about what happened she “would be in trouble”.
11. It emerged in cross-examination that the first occasion on which such activity occurred in the dark room at Springwood had not been the above-described incident.  She agreed in her statement to police she had recalled the first occasion at Springwood in the dark room had not extended to oral sex and only involved the appellant using his hands to touch her outside her vagina.  She confirmed the accuracy of that statement in re-examination, explaining the events she described in evidence-in-chief had been the second occasion.  The first occasion, limited to indecent touching with the appellant’s hands, attracted count 2 on the indictment, indecent treatment of a child under 12.
12. The appellant’s family moved to a house in Loganholme in about 1999.  Again the complainant’s family would visit them every second Sunday.  The rear shed at that property was used to store stock for the appellant’s photography shops.  The appellant took her to the shed on the pretext of her helping him apply sales stickers to photograph frames.  Once there he kissed her and again performed oral sex on her.  She said this type of activity later “progressed to fingers as well” and occurred regularly.
13. In one instance when she was about 10 or 11 she recalled her then three year old brother followed them into the shed.  She recalled the appellant undressed them both, laid her brother on top of her and said they were “having sex”.  On her account he also photographed them in this position.  About two months later he showed her the resulting photographs and told her if she told anybody she would be the one in trouble.  This activity attracted counts 4 and 5 on the indictment, indecent treatment of a child under 12 with the relevant treatment being the taking of indecent photographs of each of them.  Count 4 alleged the taking of an indecent photograph of her and count 5 alleged the taking of an indecent photograph of her brother.^[2]  The complainant did not discuss this episode with her brother until he was 16 or 17 years old.
14. Her brother gave evidence and evidently had no memory of the above event.  However, he did recall that when he was about four he approached the shed at the appellant’s Loganholme address and saw his sister lying on her back with no clothes on from the waist down and the appellant with his head between her legs.
15. The complainant recalled that also in this era, in 2001 when she was about 11, the appellant took her with him to the Mount Cotton tip on the pretext of her assisting him.  He there drove up a nearby side road in secluded bushland.  He removed the complainant’s pants.  She was on the passenger seat and he positioned himself partly in the footwell with the passenger door open.  He licked and put his tongue inside her vagina.  This attracted count 6 on the indictment, indecent treatment of a child under 12 under care.  He also rubbed her vagina with his hand and inserted his little finger into her vagina.  This attracted count 7 on the indictment, rape.  A car approached and the appellant quickly stood up, shut the door and told her to put her pants back on.
16. The appellant took the complainant to the Mount Cotton tip at least four or five times in 2001 and 2002.  On another of those occasions the complainant recalled he drove to the same spot and said they were going to do “something fun”.  He unzipped his pants, exposing his erect penis.  She then complied with his instruction to kiss his penis and “treat it like a lollipop” and his penis went into her mouth.  This attracted count 9 on the indictment, another charge of rape.
17. After that occasion, while the appellant was still living at Loganholme, he took the complainant into an enclosed trailer he used for car transportation in pursuit of his interest in motorkhana, a form of motor sport.  He closed the door and proceeded to lick and penetrate her vagina with his tongue.  This attracted count 10 on the indictment, indecent treatment of a child under 12.  He rubbed her vagina with his hand and moved his little finger in and out of her vagina.  This attracted count 11 on the indictment, another charge of rape.  He also told her to again treat his penis like a lollipop.  She did so until he told her to stop and he then ejaculated on himself.  The placing of his penis in her mouth attracted count 12 on the indictment, also a charge of rape.
18. On another occasion at the Loganholme address, when other family members were out buying fish and chips, the appellant took the complainant into his office and showed her child pornography on his computer.  This involved imagery of an, at most, 10 year old girl repeatedly moving her fingers in and out of her vagina.  This exposure to indecent imagery attracted count 15 on the indictment, indecent treatment of a child under 12 under care.
19. When the complainant was around 11 and a-half in 2012 the appellant arranged for her to accompany him to his photography shop at a local shopping centre late one Sunday afternoon.  This was done on the pretext of her assisting him transport frames to restock the shop.  It was dark inside the shop.  He there took her pants off and licked and penetrated her vagina with his tongue.  This attracted count 13 on the indictment, indecent treatment of a child under 12 under care.  He stopped when he noticed the torchlight of a nearby security guard.  This was the last instance of sexual dealing upon her.
20. The complainant testified the appellant used to tell her he was her boyfriend and when she turned 16 he was going to take her virginity.  By the time she was 11 and a-half and in year 7, she had a boyfriend, JM.
21. The trigger for the cessation of the appellant’s misconduct was the complainant’s attendance upon a sex education session at school.  She thereafter wrote the appellant a note (“the note”) taping it to the front of his computer in his office while he was away at motorkhana.  The note read:

“Hey uncle [A]

I love you but

i don’t think we should

do the things we do

any more because i

have committed my

body to my boyfriend

[JM]

From [B].”

22. The note was discovered before the appellant returned home by his wife who showed it to her sister, the complainant’s mother.
23. The complainant’s mother thereafter confronted her daughter about the note, asking what it meant.  The complainant, on her account, responded that the appellant was showing her pornography.  She testified she was too scared to disclose more at that time.  Her mother’s recollection was the complainant said the appellant had showed her dirty pictures on the internet and had exposed himself to her.  The complainant’s mother kept the note and laminated it to protect it.  The note was made an exhibit on the trial.^[3]
24. After this the complainant’s family ceased their regular visits of the appellant’s household.  While the note and its discovery does not appear to have been the subject of discussion between the appellant and the complainant, he did tell her that if she ever came forward no one would believe her and she would be in trouble.
25. Subsequently, when the complainant was about 13 years old she was in a line at Movie World when she told her aunt, the appellant’s wife, that the appellant “had performed cunnilingus” on her.  She testified to having looked up the meaning of the word “cunnilingus”.  Her aunt testified that this conversation did occur.  She thereafter told her husband, the appellant, about what the complainant had said he had done.  He denied it but did tell his wife the complainant had seen a couple of magazines, was curious and had had a discussion with him about a dildo.
26. The complainant’s mother recalled in the summer of 2003 to 2004, when the complainant was about 13, they and the appellant’s wife met together at a McDonald’s outlet and the complainant repeated what she had previously mentioned to her mother when the note had been found.  The complainant also added that the appellant had performed oral sex on her.  The complainant’s mother recalled her daughter seemed scared and did not want to go to the police.  Neither the complainant nor her aunt gave evidence of this particular conversation.
27. When the complainant was around 14, on 4 April 2005, she received a call from police from the Logan Child Abuse Unit.  The police had apparently been contacted by the complainant’s mother who had told them that a former family friend had shown her daughter inappropriate images on a website.  The complainant made no disclosure to the police when they contacted her because she “didn’t wish to speak about what had happened then”.
28. The complainant’s aunt, who separated from the appellant in 2010, testified she contacted the complainant in September 2011 asking her for more detail of what had occurred.  The complainant told her the appellant had exposed himself and shown her inappropriate photographs on the computer.  The complainant agreed in cross-examination that she had become aware of the separation of the appellant and his wife in 2010 and that there were Family Court proceedings between them which were ongoing in 2014.  On about 20 March 2014 the complainant sent her aunt an email detailing the chronology of the appellant’s misconduct in a way generally consistent with the account she gave in evidence.
29. The complainant eventually made a complaint to the police on 2 April 2014, when she was 23 and a-half years old.
30. The complainant did not come up to proof in respect of counts 8 and 14 on the indictment and they were the subject of a nolle prosequi at the end of the prosecution case.
31. The defendant did not give or call any evidence on his trial.

Ground 1: Adequacy of the warning

The issue

32. The appellant’s first ground relates to a warning the learned trial judge gave to the jury that the appellant characterises as a defective Robinson direction.
33. Robinson v The Queen,^[4] as with Longman v The Queen^[5] before it, was concerned with the effect of a provision dispensing with common law rules requiring a jury to be warned it was unsafe to convict on the uncorroborated testimony of certain classes of witnesses.^[6]  Both cases stand as authority for the proposition that such provisions do not abrogate the general requirement to give a warning to the jury whenever it is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.^[7]  Such a warning should refer to the particular circumstances that give rise to that risk and be expressed in terms that make clear the caution to be exercised in light of those circumstances.^[8]
34. In Longman, a two count indecent dealing case, the relevant circumstance was a delay in prosecution of over 20 years and the consequent loss of the accused’s ability and opportunity to adequately test the complainant and adduce evidence throwing doubt upon the complainant’s story, consequential disadvantages which may not have been apparent to the jury.^[9]  In Robinson, a case involving two offences of unlawful anal intercourse committed on the one night, multiple circumstances were relevant.  They were said, when taken with the absence of corroboration, to include: the young age of the complainant at the time of the offences, delay and the consequent loss of opportunity for a medical examination to verify or falsify the complaint, a curious absence of conversation on the evening or later, an absence of any threat or warning not to tell others, an absence of any earlier or later misconduct, a continued harmonious relationship, inconsistency and uncertainty about penetration and indicia of suggestibility on the part of the complainant.^[10]
35. The present appellant now submits there were multiple circumstances that the learned trial judge’s warning below should have but did not include reference to.  Before turning to those circumstances it is necessary to first review what actually occurred below.

What occurred below

36. The impugned direction had its genesis in a discussion between the learned trial judge and counsel prior to the commencement of addresses.  Defence counsel sought what he initially described as “a classic Longman direction” by reason of the delay in the making of the complaint and the appellant being deprived of the chance to adequately investigate the matter and test evidence because of the passage of time.  In the ensuing exchange defence counsel acknowledged it was difficult to specifically identify any actual disadvantage flowing from the delay.  After it was highlighted that the prosecution case depended upon the word of the complainant, he submitted:

“[I]t might even be so much as to say that your Honour should go ahead and give them a Robinson type direction along the lines that it would be dangerous to convict.”^[11]

37. Counsel’s reference to Robinson in this context was evidently calculated at arguing the words “dangerous to convict” ought be included in the warning.  It was not then part of an argument that there were a multiplicity of circumstances warranting the warning.
38. The learned trial judge initially indicated reluctance to use the phrase “dangerous to convict”.^[12]  When the topic was returned to the following morning, defence counsel emphasised he was seeking “a Longman direction”.^[13]  This was on the basis the complainant’s evidence could not be adequately tested after the passage of such a long time and the defendant, by reason of that delay, had lost means which would otherwise have been available of testing and meeting her allegations.  Defence counsel then submitted:

“Your Honour, in my submission, your Honour would go on and give a direction about the danger of conviction.  Can I say this: in my submission, there is an unacceptable risk of miscarriage of justice if they are not warned of the need to scrutinise the evidence of the complainant…before they can come to a conclusion of guilt. … So then, my ultimate submission, I suppose, is that if your Honour’s prepared to give the Longman direction my next step, in my submission, is your Honour should also warn of the danger of convicting.  There are a number of reasons as to why that’s appropriate, in my submission.  They are as follows: the discovery of the note and the failure to complain to police immediately, the subsequent disclosures between – and I’ll say it generically – 2003 and 2011 … before the police statement was given in 2014, and the opportunity that was lost by the defendant even at those individual stages along the way, had the complainant been brought to the attention of the police in 2002, 2003/4, 2005, 2011.”^[14]

39. Defence counsel then specifically identified the inability to investigate the appearance and configuration of the Mount Cotton tip and surrounds as significant.
40. In the ensuing exchanges the learned trial judge again expressed hesitation to go so far as telling the jury it would be dangerous to convict.^[15]  Defence counsel referred his Honour to a discussion of Longman and Robinson directions by Applegarth J in R v MBX.^[16]
41. Addresses ensued and the summing-up commenced.  During an adjournment of the summing-up the learned trial judge informed counsel in advance of what he intended to say by way of direction in this context.  His Honour informed counsel he had changed his “position about the Longman direction, having had a chance to read some more of Justice Applegarth in MBX”.^[17]  His Honour then outlined the direction he intended to give, which was in accordance with the direction subsequently given.  Neither counsel took issue with the proposed direction.
42. The relevant direction was given at a stage of the summing-up immediately after the learned trial judge had discussed the potential significance to reliability and credibility of inconsistencies within the complainant’s account and in comparison to the accounts of others.  The allegedly defective direction, following immediately thereafter, was:

“It is important, in that regard, that you will need to scrutinise the evidence of the complainant with great care before you could arrive at a conclusion of guilt, because, almost completely, the Prosecution case depends on your finding [the complainant’s] evidence true and correct beyond reasonable doubt.

So you have to scrutinise that evidence very carefully, remembering that she was a young girl at the time.  Take into account her age at the time of the alleged incidents – the difficulties that all people have sorting memories of events so long ago.

And, in that regard – although I don’t know that submissions were made about this – but you might take into account evidence of flashbacks.  There’s no science in evidence about what that means.  You have to be satisfied beyond reasonable doubt that the complainant is correctly and reliably remembering the things that she has told you about before you could act on her evidence.

So you take into account her age at the time, the difficulties people have remembering things, the delay.  You should also take into account this: that the delay between the time of each alleged incident and the time that the accused was told about it – in other words, the time a complaint was brought to his notice – may be relevant to your assessment of the evidence, because it involves a lack of opportunity to prove things that he might be able to prove, or to disprove the allegations.  For example, checking records about his presence at the house; or, for example, proving the precise layout of the shed at the home at [Loganholme]; or proving the precise layout of the dump, and whether there was or was not a road.

So an accused person can only test whether the complainant’s account is truthful after he’s informed of the complaint, and the lapse of time might make that harder or impossible.  And the inability to challenge the complainant’s evidence might make it seem more persuasive evidence.

So, for all of those reasons, members of the jury, you must scrutinise the evidence of the complainant with great care before you could arrive at a conclusion of guilt.  It would be dangerous to convict before first examining the evidence very carefully, taking into account these matters I’ve warned you about.  You should only act on the complainant’s evidence with all of the other evidence if, after considering the warning I have just given you and all the evidence, you’re satisfied of its truth and accuracy.”^[18]

Analysis

43. The above warning generally conformed to that contended for by defence counsel at trial, identifying the circumstance of delay and associated disadvantage which counsel premised his submissions in support of a warning upon.  Nonetheless, the appellant’s counsel contends the warning was defective because it failed to refer to eight circumstances raised by the appellant’s counsel on appeal.  Those circumstances are individually listed in italics and addressed below.
44. The appellant’s ground gains no cumulative weight by the quantity of circumstances listed.  As the ensuing analysis of each demonstrates, they are at best circumstances of a kind typically attracting rival arguments in addresses.  They are not circumstances of such concern as to have warranted specific reference in the warning given.

Circumstance (a): The inconsistency in the complainant’s versions in describing the first occasion that anything occurred at [Springwood] differently in her evidence in chief to her statement.  At trial the complainant maintained that on the first occasion there was touching and licking of her vagina, whereas in her statement she said the first occasion involved only touching with no mention of oral sex.  The complainant accepted that what was in her statement was different to her evidence.

45. The facts relevant to this circumstance are summarised above at [8]-[11] above.  It is not accurate to say that the complainant “maintained” her position at trial.  When reminded of her police statement on this issue in cross-examination she accepted it was different from what she had testified and when she tried to explain herself was cut off from doing so by counsel.^[19]  In re-examination she explained her statement to police was correct and that the episode she had wrongly described in evidence in chief as the first occasion was the second occasion.^[20]  The trial judge reminded the jury of this inconsistency when directing the jury of the facts relied upon in respect of counts two and three (count one being the maintaining charge).^[21]  He also reminded the jury generally of the relevance of inconsistencies of account to their assessment of reliability and did so in the immediate prelude to the direction in which the impugned warning was given.^[22]
46. The complainant’s error was not an error of such concern as to attract more specific curial attention.  It ought be remembered this was not a case of only one or two events of molestation.  It involved a long series of repetitious, similar behaviours, often in the same locations, beginning back when the complainant was only six or seven years old and continuing until she was 11 years old.  Against that background it is hardly remarkable that an adult complainant, in the trying circumstance of describing childhood sexual abuse of her before a court, might err in describing the extent of the first rather than second sexual touching.
47. In connection with this point it was more concerning that the complainant testified of “flashback” recollections of the appellant’s conduct prior to any indecent touching (see [6] above).  This was of obvious relevance to the reliability of the complainant’s early recollections of the appellant’s indecent touching of her.  While apparently not the focus of submissions in addresses his Honour actually did identify that circumstance in the above quoted direction as one of the reasons for the warning which was given by him.

Circumstance (b): That the complainant’s brother, despite the two apparently having discussed the complainant’s allegations, said nothing about an event such as the complainant described in Counts 4 and 5.

48. This evidence is described at [13] – [14] above.  It involved the appellant orchestrating the complainant and her brother into what was, to an adult, an obviously sexualised position and then photographing it.  However, the event occurred when the brother was only three years old.  It is therefore entirely unsurprising that the complainant’s brother would not have recalled the event.  This was, at best for the appellant, a weak address point.

Circumstance (c): That in the e-mail the complainant described that she and her brother “had sex”, when that was not part of her evidence.

49. An element of inaccuracy also attends the appellant’s articulation of this circumstance.  The relevant passage of the email, referred to briefly above at [28], was:

“During these years I remember him taking pictures of myself and my brother, [L], naked.  He made myself and [L] (who was three at the time) strip down and “have sex”.  He put [L] on top of me and took photos.”^[23]

50. This email was read to the jury and only tendered for identification; however, the above quoted parts in round brackets and in inverted commas were specifically identified as being so punctuated in the note.^[24]  Considered in context, inclusive of the inverted commas around the words “have sex” and the reference to the appellant putting her brother on top of her, it is quite obvious this passage was merely describing the simulated sexual positioning orchestrated and photographed by the appellant.  There is no substance to the alleged inconsistency.

Circumstance (d): That the e-mail may have suggested that taking photos of the complainant and her brother occurred on more than one occasion.

51. There is no substance to this alleged inconsistency either.  The email’s reference to “photos”, necessarily suggesting that more than one photograph was taken, was not accompanied by any other broader contextual information on the topic of whether the photographs had been taken in the course of one occasion or multiple occasions.  The email’s content was simply neutral on the point.  There is therefore no inconsistency between the email and the evidence of the complainant that the photographs referred to in the email were taken on the one occasion.

Circumstance (e): (Abandoned).

Circumstance (f): That when the opportunity to complain first arose when the complainant was aged about 12 in 2002 or 2003, and when she was confronted about the meaning of the note, she said only that the appellant had shown her pornography, and nothing about any physical form of sexual abuse.

Circumstance (g): That the complainant added the detail of “cunnilingus” about 2 years later around 2003 or 2004.  At that stage there was still no suggestion of any digital penetration or her performing oral sex on the appellant.

Circumstance (h): That on 4 April 2005 when contacted by the police and given an opportunity to complain the complainant did not do so.

52. It is convenient to deal with circumstances (f), (g) and (h) collectively.  The framing of these circumstances as being so significant as to warrant curial warning implicitly relies upon the long outdated reasoning that suspicion attends the failure of a child victim of sexual abuse to complain, and complain in complete detail, when any early opportunity to do so arises.
53. Reasoning of this kind is now well recognised as being without proper foundation and failing to allow for the reality that the making of a complaint of sexual assault for any complainant, let alone a child, is a harrowing experience.^[25]  Indeed the inappropriateness of giving judicial imprimatur to such reasoning was made plain by the legislature in 2003 by the insertion of s 4A in the Criminal Law (Sexual Offences) Act 1978.  That section provides:

“4AEvidence of complaint generally admissible

...

2. Evidence of how and when any preliminary complaint was made by the complainant about the alleged commission of the offence by the defendant is admissible in evidence, regardless of when the preliminary complaint was made.

...

4. If a defendant is tried by a jury, the judge must not warn or suggest in any way to the jury that the law regards the complainant's evidence to be more reliable or less reliable only because of the length of time before the complainant made a preliminary or other complaint.

5. Subject to subsection (4), the judge may make any comment to a jury on the complainant's evidence that it is appropriate to make in the interests of justice.

6. In this section—

complaint includes a disclosure.

preliminary complaint means any complaint other than—

1. the complainant's first formal witness statement to a police officer given in, or in anticipation of, a criminal proceeding in relation to the alleged offence; or

2. a complaint made after the complaint mentioned in paragraph (a). …”  (Emphasis added)

54. The appellant’s submissions implicitly seek to avoid the consequences of s 4A(4) by focusing the argument not so much upon the lapse of time between the circumstances in question and the offending behaviour and rather upon these being circumstances in which the complainant, if telling the truth, ought be expected to have disclosed more in each instance.  Whether such reasoning avoids the effect of s 4A(4) does not need to be resolved.  The flaw in the outdated reasoning relied upon in support of circumstances (f), (g) and (h) is readily apparent on the facts of the case.
55. In respect of circumstance (f), it is not surprising on the facts of the case that a child who had been sexually abused by her uncle for years, when caught out leaving a note for her uncle indicating she did not think “we should do the things we do anymore”, did not reveal all to her mother.  As much is made even plainer by the evidence that the appellant had told the complainant if she told anyone about what happened she would be in trouble and no-one would believe her.^[26]  Indeed of the very occasion contemplated by circumstance (f), the occasion when the complainant’s mother confronted her about the note, the complainant testified she had not said more at that time because she was “too scared”.^[27]
56. The same considerations are relevant to circumstance (g).  Even though she was still in her early teens when she disclosed there had been cunnilingus, it may well have remained too harrowing for her to disclose that she had been digitally penetrated and had performed oral sex upon the appellant.
57. Such considerations also apply in respect of circumstance (h).  The complainant was still only 14 and a-half when contacted by the police.  Against that background it is unremarkable that, as she testified, she did not take the opportunity to tell the police what had occurred:

“Because I was scared.  I genuinely thought that I was going to get in trouble.”^[28]

58. Circumstances (f), (g) and (h) at best give rise to arguments of a kind typically advanced in closing addresses, but none were such as to ground any perceptible risk of miscarriage of justice in the absence of a warning about them.

Circumstance (i): That the complainant’s evidence about what occurred on the occasion of counts 9, and 13 was so different to the evidence the Crown had opened that the complainant would give, that the respective companion counts 8 and 14 were discontinued.  Particulars had been provided in the form of a factual schedule with the particulars in bold.  They disclosed that it was expected that the complainant would say that the appellant performed oral sex (Count 8) on the complainant before she sucked his penis (Count 9).  The complainant did not mention the appellant performing oral sex on her on that occasion so Count 8 was discontinued.  Similarly it was expected that on the occasion of digital penetration (Count 14) that the complainant would say that was preceded by the appellant performing oral sex upon her (Count 13).  The complainant did not give evidence of any oral sex on that occasion so that Count 13 was discontinued.

59. It has long been recognised that victims of prolonged sexual abuse ought not be disbelieved merely because they experience difficulty in recalling specific separate episodes of abuse with sufficient particularity to set them apart from other repetitive instances of the same types of abuse in the same or very similar circumstances.  It is this very difficulty which gave rise to the legislature’s creation of the offence of maintaining a sexual relationship with a child at s 229B of the Criminal Code in 1989.^[29]  When first introduced s 229B was described in the Bill’s Second Reading Speech as having been drafted "in recognition of the limited recall which many children… have in respect of specific details such as time and dates of the offences and other surrounding circumstances."^[30]
60. As with all of the counts other than count 1 in the indictment, counts 9 and 13 reflected attempts by the prosecution to prove specific identifiable occasions of sexual misconduct.  The fact that the complainant failed to come up to proof on the particulars given in respect of those two instances is not, in a case involving years of repetitive sexual misconduct, so concerning as to warrant curial warning of the kind contended for.

Conclusion

61. As the above analysis demonstrates, the circumstances relied on by the appellant in some instances are entirely lacking in substance and the balance, at worst, give rise to potential arguments about credibility and reliability.  Even considered collectively they do not give rise to a perceptible risk of a miscarriage of justice so as to have required reference to them in the warning which was in fact given in this case.
62. Ground 1 must therefore fail.

Ground 2: The direction about the note

The evolution of the issue below

63. The evidence in respect of the note and its discovery is summarised at [20]-[23] above.
64. There was no objection to the note being received as an exhibit at trial.
65. The use which could be made of the note was the subject of submissions prior to addresses.  The Crown Prosecutor submitted the note had not been led as a preliminary complaint, pursuant to s 4A Criminal Law (Sexual Offences) Act 1978 (Qld), because it was directed towards the appellant.  Rather, she submitted it was circumstantial evidence pointing towards the existence of a relationship between the appellant and the complainant.^[31]  No submission was then made on the topic by defence counsel.
66. In the ensuing summing-up the learned trial judge only made reference to the note in the context of summarising the submissions of counsel.  In that context he reminded the jury the Crown Prosecutor had referred to the note as one of a number of instances of disclosures about the appellant’s conduct at a time when she was younger and which supported the complainant’s credibility.^[32]  He also reminded the jury the Crown Prosecutor had submitted the evidence about the note demonstrated the relationship between the appellant and complainant.^[33]
67. The learned trial judge made no specific reference to the note in summarising submissions of defence counsel and the transcript of defence counsel’s address demonstrates he referred to it only briefly in two contexts.  The first was as part of an argument about the lack of credibility of the evidence of the complainant’s mother in that, having been informed the appellant had performed cunnilingus upon her daughter and having previously kept the note, the complainant’s mother did not seek police intervention forthwith.^[34]  Secondly, defence counsel referred to the note in the context of emphasising the appellant had never been confronted with the note and, instead, it had fallen into possession of others.^[35]
68. At the conclusion of the summing-up, in the course of submissions for redirections, the learned trial judge appeared to accept the jury ought be directed about the use they could make of the note.  Defence counsel contended it was only background evidence explaining the circumstances which first led the complainant to make a disclosure to her mother when her mother confronted her about the note.  However, the trial judge concluded the note could also be used as evidence implying the existence of a relationship by its tenor.^[36]

The direction and its effect

69. The jury returned and his Honour gave the following direction:

“Sorry to interrupt you, members of the jury.  I’ve just been having a discussion with counsel about exhibit 4, the note.  The only thing I really told you about the note was by reference to submissions made by Ms Overell that it was relied on to imply something about the relationship, count 1.

At its base, the note is really before you as a necessary part of the narrative, because it leads to a discussion between mother and daughter about what happened.  And that is a relevant piece of evidence, because it’s complaint evidence.

So the note isn’t before you as direct proof of anything.  It’d be wrong to read the note as evidence that any particular thing had happened between them.  But I do leave the note to you, as the submission was made, as something which implies – or gives rise to – an inference about the relationship between them.  Not because of what’s in the note, but because of the tenor of the note – because of the manner of writing such – between the 12 year old and the uncle.

That seems to me to be the height of its relevance.  You might think it says nothing.  You might think it doesn’t help you understand the relationship between them at all.  The point I’m trying to make is that the note doesn’t prove that anything happened.

At its most, it’s relevant to showing you something about the relationship between the complainant and the accused, not necessarily by its contents but by its tenor.  I know that that’s an – could be an artificial (sic – thing) to say.   You don’t know what its tenor is without reading it.  But that’s because there’s no direct evidence about what happened between them, if anything, from the note.  All right.

One of the arguments that I’ve heard is that, really, its only relevance is to show the narrative because it leads to the discussion between the mother and daughter.  And you might choose to just deal with it that way.  That is a matter of law.  It’s also there for you to consider as an indicator of the relationship.  All right.  Thank you, members of the jury.  I’ll ask that you retire again and consider your verdicts.”^[37]

70. The appellant submits this direction was confusing and contradictory and would have left the jury with the impression it could use the evidence about the note as circumstantial evidence of the sexual relationship maintained by the appellant with the complainant.  There is substance to that complaint.
71. It would have been difficult for the jury to comprehend the distinction between them having regard to “the tenor of the note” but not using the note’s content “as evidence that any particular thing had happened between” the appellant and complainant.  The latter direction may have been intended only to preclude use of the note as direct rather than circumstantial evidence.  Indeed it was preceded by a direction the note was not before the jury as “direct proof of anything”.  The note did not actually recount “any particular thing” which had happened.  It did, however, make general reference to “the things we do”, which the jury would likely have inferred was a reference to the nature of the relationship between the appellant and complainant.  It is difficult to see how the jury could have used the note’s tenor in any sense relevant in the trial other than as implying there had been things which “had happened between” the appellant and complainant in their relationship.
72. The jury were told they could use the note to draw “an inference about the relationship between” the appellant and complainant and to “consider as an indicator of the relationship”.  They were also told they could use its tenor to show them “something about the relationship”.  However, they were not told what that “indicator”, “inference” or “something” might be.
73. The note’s statement “I love you but I don’t think we should do the things we do any more because I have committed my body to my boyfriend”, suggested the existence of a relationship of some intimacy without expressly identifying what things the appellant and complainant had been doing.  However, the inference that the “things” the note referred to involved sexual behaviour of some form between the two of them seems obvious, particularly when juxtaposed with the additional words, “because I have committed my body to my boyfriend”.  Those words suggest that the “things” the appellant and complainant had been doing together involved physical behaviour of a kind ordinarily occurring between a girlfriend and boyfriend, not an uncle and his niece.
74. This was not a case, such as a spousal murder set against a history of domestic violence, where evidence of the past relationship was led to give proper context to the alleged occurrence of the charged event.^[38]  The past relationship here was itself the subject of a charge, with the paramount issue being whether the relationship had been a sexual one.  For that reason, once the jury were told they could use the note to indicate, infer or show them something about the relationship, it is likely or at least a real possibility the jury would have understood the note could be used by them as evidence to infer that the relationship involved sexual behaviour between the appellant and complainant.
75. In light of that prospect it is necessary to consider the direction as if it did permit the jury to use the evidence about the note as circumstantial evidence in proof of the alleged sexual relationship between the appellant and complainant.
76. The appellant submits it was not permissible for the jury to use the evidence about the note in such a way, indeed that the jury should have been warned against such use.

Could the evidence about the note be used as circumstantial evidence tending to prove the sexual relationship?

77. His Honour’s direction was obviously formulated by reference to common law principles in respect of hearsay evidence, particularly the distinction between impermissible reliance upon the relevant statement as evidence of truth of its content as distinct from permissible reliance upon the fact of the making of the statement.
78. That principle was articulated in the following passage in Ratten v The Queen,^[39] cited with approval by the High Court in Walton v The Queen^[40]:

“The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called, is no objection to its admissibility.  Words spoken are facts just as much as any other action by a human being.  If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken.  The question of hearsay only arises when the words spoken are relied on ‘testimonially’, i.e., as establishing some fact narrated by the words.”

79. In the present context the words were written rather than spoken but, importantly, they were part of the complainant’s act of intercepted private communication with the appellant.  The assertions contained within the complainant’s note are necessarily relevant in explaining the nature of the complainant’s act of attempted communication.  The bare fact that a 12 year old may leave a note for her uncle is inconsequential.  However, if it is known the note from the child says “I love you but I don’t think we should do the things we do anymore because I have committed my body to my boyfriend”, the fact the child attempted to communicate such an assertion to her uncle is a piece of circumstantial evidence relevant to proof of the nature of the relationship between them.  Thus the assertions in the note inform the conduct.
80. In Walton v The Queen the High Court relevantly observed of conduct involving an assertion:

“[N]ot all conduct involving an assertion, express or implied, is treated as hearsay and held to be inadmissible in evidence.  If it were, the available evidence in many cases would be seriously depleted.  The distinction to be drawn is that to which we have referred, namely, the distinction between evidence of conduct which, even though it may contain an assertion, is tendered as a relevant fact or a fact relevant to a fact in issue and is therefore admissible and evidence of conduct which has no probative value other than as an assertion and is therefore not admissible.”^[41]

81. These principles explain why the learned trial judge directed that the note was not of itself direct proof of anything.  They also explain his direction that the note could be used to explain the nature of the relationship between the complainant and appellant because of its tenor, in the context of it being written between a 12 year old girl and her uncle.
82. The direction did not expressly explain that the significance of a note of such tenor lay in its use in an act of attempted private communication by a niece with her uncle.  This conduct provided the pathway for the note’s use pursuant to the above discussed principles.  It is unnecessary to resolve whether that subtlety should have been explained and if so whether it was implicit in the direction given.  More broadly it is unnecessary to resolve whether it was permissible, pursuant to the above principles, for the jury to use the evidence about the note and its content as circumstantial evidence in proof of the alleged sexual relationship between the appellant and complainant.  That is because there was another legitimate pathway for the admission into evidence and use of the note in such a way.
83. That pathway was s 93A of the Evidence Act 1977 (Qld).  Regrettably that provision was not referred to the learned trial judge.  Had it been, his Honour would likely have given a less obscure direction, unconcerned by the vague parameters of the above discussed common law principles.
84. Section 93A relevantly provides:

“93AStatement made before proceeding by child or person with an impairment of the mind

1. In any proceeding where direct oral evidence of a fact would be admissible, any statement tending to establish that fact, contained in a document, shall, subject to this part, be admissible as evidence of that fact if—

1. the maker of the statement was a child or a person with an impairment of the mind at the time of making the statement and had personal knowledge of the matters dealt with by the statement; and

2. the maker of the statement is available to give evidence in the proceeding.

…

3. Where the statement of a person is admitted as evidence in any proceeding pursuant to subsection (1) …, the party tendering the statement shall, if required to do so by any other party to the proceeding, call as a witness the person whose statement is so admitted and the person who recorded the statement.

…

5. In this section— …

child, in relation to a person who made a statement under subsection (1), means—

1. a person …”

85. The Evidence Act’s dictionary at schedule 3 provides, as to the meaning of the word “statement”:

“statement includes any representation of fact, whether made in words or otherwise and whether made by a person, computer or otherwise.”

86. The note was a statement within the meaning of s 93A.  The complainant was a child at the time she made it and she was called as a witness.  Her statement was therefore admissible under s 93A if it tended to establish a fact which direct oral of such a fact would have been admissible to prove.  If it was so admissible then the effect of s 93A, in a statutory exception to the hearsay rule, is that the statement was evidence of the facts that the statement tended to establish.^[42]
87. It is beyond question that in the proceeding below direct oral evidence of the fact of a relationship involving sexual behaviour as between the appellant and complainant was admissible.  Did the content of the note tend to establish that fact, as s 93A requires?
88. It did not do so directly but it did give rise to the inferences already discussed at [73] above.  Considered in context, the note’s reference to “the things we do” may reasonably be inferred to be a reference to repeated sexual behaviour which had been occurring in a relationship between the appellant and complainant.  The statement contained in the note is therefore a statement “tending to establish” there had been a relationship involving sexual behaviour occurring as between the appellant and complainant, a fact about which direct oral evidence was admissible in the proceeding.  Thus the note was admissible as evidence of that fact pursuant to s 93A and the jury was entitled to use its content as tending to establish that fact.

Error?

89. Ground 2 complains the trial judge erred in directing the jury that the note could be used in proof of the relationship between the appellant and complainant.  The argument advanced in support of that ground was that the direction should not have been given at all.  That argument has failed because, for the reasons explained above, the note could be so used.
90. That though is not the end of the matter.  It will be recalled the direction in dispute has had to be considered on the basis the jury may have regarded it as allowing the evidence about the note to be used as circumstantial evidence in proof of the alleged sexual relationship between the appellant and complainant.  While that use was permissible the dilemma remains that the direction said so little about the parameters of such a use.  A significant omission was the absence of explanation of circumstantial reasoning apposite to the use of the note.
91. Accepting it was permissible for the jury to use the evidence about the note as tending to establish there had been a relationship involving sexual behaviour, the evidence only tended to establish that fact as a matter of inference, that is, as circumstantial evidence.  That is so regardless of whether such use is justified by the common law principles discussed above or by s 93A.
92. The only direction given of relevance to circumstantial evidence was a standard direction in the introductory phase of the summing up dealing with the drawing of inferences.^[43]  This was not a case requiring a special direction of the kind apt to a case based substantially on circumstantial evidence.  However, it at least required an explanation of the need to be satisfied the note’s reference to “the things we do” was to physical sexual interaction between the appellant and complainant and to exclude the possibility it was a reference to some lesser form of interaction, such as the showing of pornography or discussions about sexual topics such as dildos.  Such a direction would have explained those examples of lesser interaction arose from the evidence, in that the complainant told her mother the note was a reference to the showing of pornography and the appellant told his wife he and the complainant had discussions including about a dildo.
93. The appellant made no specific complaint about the absence of such instructions within the direction given.  However, it needs to be borne in mind his complaint was that the direction should not have been given at all.  It is no answer to such a complaint to conclude such a direction was permissible if the direction given was deficient.
94. After the direction was eventually given below, the applicant’s then counsel did not complain it was deficient.  Where, as here, a direction not asked for should have been given, this court ought only interfere if the failure to direct constituted a miscarriage of justice.^[44]  No such miscarriage will have occurred unless it is reasonably possible the failure to direct the jury may have affected the verdict.^[45]
95. It is reasonably possible the jury regarded the note as tending to confirm the complainant’s account that the appellant had maintained a sexual relationship with her.  The only other evidence arguably having that corroborative effect was the complainant’s brother’s witnessing of the appellant apparently performing oral sex on her.  The note was therefore an important piece of evidence which may have affected the verdicts.
96. Unfortunately the real risk which cannot be discounted here is that the jury may have used the note as evidence tending to prove the sexual relationship between the appellant and complainant as alleged by the prosecution without reaching a specific view as to whether the note’s reference to “the things we do” was to physical sexual behaviour or something less than that.  The jury may not have appreciated if it was possibly the latter then the note could not be used as evidence in proof of the charge of maintaining a sexual relationship with a child.  Allied to this risk is the similarly real risk of the jury reasoning, impermissibly, that even if the “things” the note referred to did not involve physical sexual behaviour they must nonetheless have involved morally reprehensible behaviour which it could take into account against the appellant.
97. For these reasons it is reasonably possible that the failure to direct of the need to be satisfied the note’s reference to “the things we do” was to physical sexual interaction between the appellant and complainant, and not some lesser conduct, may have resulted in the impermissible use of the note in a way which affected the verdicts.  The failure to so direct the jury therefore constituted a miscarriage of justice.

Conclusion

98. It follows the convictions must be quashed and a re-trial ordered.
99. This conclusion and the pathway to it made it unnecessary to express a view as to whether two other matters, not the subject of argument, also needed to be specifically addressed in the direction or were sufficiently covered by implication amidst other general directions.  However, given the prospect of a re-trial it is helpful to identify those two matters, on the basis specific directions about them would at least have been desirable.
100. Firstly, it was desirable for the jury to have been instructed that before it could use the note as evidence of the nature of the relationship it was necessary to be satisfied the note’s content was truthful and reliable and not the product of imaginings or untruths or a prank.  As part of such a direction the jury should have been instructed to consider whether the note was actually intended to be a private communication or was left with the intention it would be found by the complainant’s aunt or mother.  On either scenario the document would be admissible pursuant to s 93A.  However, if it were not a genuine letter to the appellant - as on its face it professes to be - then the probative force apparently deriving from the note being a private communication in the course of the relationship should be disregarded and the fact of such a misrepresentation should be taken into account in considering the truthfulness of the note’s factual content.
101. Secondly, it was desirable for the jury to be told which of the charges the note was relevant to and in what way.  The note was relevant in proof of the charge of maintaining a sexual relationship with a child because it was circumstantial evidence tending to show there had been a relationship involving sexual behaviour occurring as between the appellant and complainant.  However, it did not refer to any specific episode with particularity so its relevance to the other charges was not in proof of them and was confined to the general support it potentially gave to the complainant’s credibility.

Orders

102. I would order:
     1. The appeal be allowed.
     2. The appellant’s convictions on counts 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13 and 15 of the indictment be quashed.
     3. The appellant be retried upon those counts of the indictment.