R v SCV[2017] QCA 218

SUPREME COURT OF QUEENSLAND

1. SOFRONOFF P:  I agree with the reasons of Morrison JA and with the orders his Honour proposes.
2. GOTTERSON JA:  I agree with the orders proposed by Morrison JA and with the reasons given by his Honour.
3. MORRISON JA:  On 3 August 2016, the appellant was found guilty of one count of indecent treatment of a child under 16, under 12, who was a lineal descendant.  The complainant was his daughter.
4. The complainant and her brother were taken into foster care shortly after their birth, and had never lived with the appellant.  The offence dates spanned a period when, by admission at the trial, the appellant had the only occasion of unsupervised access to the complainant, who was then about seven and a-half years old.
5. The complainant gave evidence that when they were in the lounge watching television the appellant took her clothes off and touched her in the area of the vagina, rubbing his hand there, and pinching her “fanny”.
6. The appellant appeals against his conviction on the basis that:

1. Ground 1: there has been a miscarriage of justice by reason of the failure of defence Counsel to cross-examine concerning the complainant’s earlier allegations of sexual abuse by the appellant;
2. Ground 2: there has been a miscarriage of justice because the appellant was denied an informed choice whether to give evidence;
3. Ground 3: there has been a miscarriage of justice as a result of the learned trial judge’s response to the jury question “Is the date shown in Count 1 as the period of the alleged offence have to be satisfied to find a guilty verdict”; and
4. Ground 4: the verdict is unreasonable and cannot be supported having regard to the evidence.

7. In relation to ground 1, the appellant seeks to adduce fresh evidence on the appeal, from himself and a lawyer.  In response, the Crown relied upon a number of affidavits from the trial lawyers acting for the appellant.

The evidence

8. The evidence heard by the jury encompassed the complainant, a counsellor (F), the complainant’s foster mother (N), the complainant’s biological mother (S), the interviewing police officer (P) and a child safety officer (L).  In addition there were a number of formal admissions.

Admissions

9. The following admission were made at the trial:^[1]

1. The complainant and her twin brother were born in 2005.

2. They are the children of the appellant and S.

3. Within a week of the twins being born, they were taken into the care of Child Safety Services.

4. The twins were not taken into care because of any concern about sexual abuse by the appellant.

5. The twins have never lived with their parents, but have lived in a number of foster homes. The twins lived with the B’s from 2008 until January 2013, and the twins have lived with N from January 2013 to the present.

6. The appellant and S had supervised access to the twins at various times since their birth.

7. The appellant and S had unsupervised access to the twins from the end of May 2012 to the start of October 2012.

8. The unsupervised access between the appellant and the twins did not cease because of concerns about sexual abuse by the appellant.

9. The complainant had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) at the time of her first interview with police on 17 June 2013, but was not being medicated for that condition.

10. At the time of her second interview with police on 27 November 2014, the complainant was receiving medication to treat her ADHD.

11. On 29 September 2011 the twins were living with the B’s. Mr B was at home with the twins, who were playing in a cubby house. When Mr B checked on the twins he observed the brother’s head in the complainant’s lap. The brother told Mr B that “they” saw a child in the school toilets sucking the penis of another child. The complainant told the B’s that her brother had told her to suck his penis.

The complainant’s evidence

10. The complainant gave evidence by means of a statement pursuant to s 93A of the Evidence Act 1977 (Qld), and pre-recorded evidence under s 21AK of that Act.
11. The complainant was eight when first interviewed by police in June 2013.  She said that she and her brother were in foster care with N until they reached 18 years of age.  The appellant was helping the complainant’s sister (who lived with the appellant and S) and fell and broke his leg.  As a result the complainant and her brother had to have visits at the house occupied by the appellant and S.^[2]
12. At her first interview the complainant said:

1. two girls at her school told her to “go into the toilets with them to do S-E-X”;^[3] she walked off but the two girls “started to do it”;^[4] she told the teacher; she explained that “doing S-E-X” meant “how you rub your rude part together to the other person’s”;^[5] they were seen under the toilet door;^[6]
2. she explained “doing S-E-X” in more detail, as  “when the other person puts … their hand on … the other person’s … rude part”;^[7] she saw each of the girls touching the other’s rude part;^[8]
3. she identified that the “rude part” is also called “fanny” and “bottom”, and is the part that you go to the toilet with, and the fanny is used to “do number ones”;^[9]
4. in terms of who lived where, her mother, father and sister lived in “my real house”;^[10]
5. she explained that the appellant: “touched … my rude parts when … Mum and [her brother] and [her sister] was …  Mum and Dad’s room and me and Dad was in the lounge room, Daddy touched my rude part. … and I didn’t tell him to do that, but he done it.  And I said, “I don’t” - and I said, “I didn’t tell him.”  And I said, “I don’t”- I didn’t wanna.”^[11]
6. when asked for greater detail, she said that it occurred “when we was living - with Mum and Dad, when we didn’t get tooken to [N’s] or [X] or [Y], all those, the carer or to, yeah, [Z]”; it was when they were living “with Mum and Dad”;^[12]
7. she said “I tell him - Daddy to stop touching my rude part”;^[13] “I was telling Daddy to stop touching my rude part, but he didn’t”; he touched her on her fanny with his hand; at that point she indicated her crotch as the place where his hand touched;^[14]
8. later she explained how she was touched; she said “he rubbed his hand on my fanny”, “he went  like … that”, at the same time as making a rubbing motion on her crotch;^[15] then “he started to pinch my fanny”;^[16] she indicated a pinching motion on her right knee, to show how he pinched, saying it was “hard”;^[17]
9. she said it happened when she was sitting on the lounge watching High Five on television;^[18] the appellant was sitting on the ground;^[19]
10. she explained it further: “ … he was in bed.  And then I tip-toed out… into the lounge room and … waked up and he - he was - he looked over my side, he looked over the side where I – ‘cause I sleepted [sic] near Daddy and he looked … on this...side, because he was on this...side and I was on ...that side and he looked over this...side and he - and I wasn’t there, so he tip-toed out to the lounge room and done it, done - touchted [sic] my rude part”;^[20]
11. he took her clothes off, by pulling them down;^[21] when she asked him to stop he said “no”;^[22]
12. she explained that the appellant, S, herself and her brother and sister were all in the one bed that night;^[23] and
13. she was touched on an occasion when she was living with the appellant and S, with no carers; that was the only time that the appellant had touched her on her rude parts.^[24]

13. A feature of the first interview was that the complainant was constantly fidgeting, wriggling around and distracted from the task of answering the questions.  The interviewers had to repeatedly ask her to concentrate and try to sit still while the interview was under way.
14. A the second interview in November 2014, the complainant, then aged nine, said:

1. what happened was: “Mum, [her brother] and [sister] were down in the hallway and me … and Dad were in the lounge room, and … when no-one was watching Dad took … my clothes off and he started to touch my private part.  And I said, No, Daddy.  Not to do that.  He just kept on doing it, and then when Mum and [her brother and sister] came out he just pulled my clothes up … again and watched TV”;^[25]
2. “I kept saying no, but he kept on doing it and … he wouldn’t listen to me, so I was starting to walk away, but he grabbed me and he kept on doing it to me.  And I said, “stop”, but he kept doing it”;^[26]
3. she explained where the others were: “… they were playing this game because they - well.  [Her sister] was in her room and Mum was in her room doing something, and [her brother] was in his room … playing a game, but [her sister] was in mine and hers doing a game as well, and Dad just took my clothes off and that, and he touched my private part”;^[27] “he kept on touching it when they were down in the hall in their rooms … he kept on rubbing it”;^[28]
4. she identified the “rude part” as her fanny;^[29]
5. he rubbed her fanny with his hands;^[30] at this point of the interview she indicated a rubbing motion with her hand in the vicinity of her crotch;
6. it occurred “in the lounge room at my real home when I was six”;^[31] the “real home” meant “with my family … because I’m in foster care”;^[32]
7. the appellant took her pants and knickers off;^[33] and
8. she gave a description of the “real house”, including that it had a pool, the dogs they had, the appellant’s guitar and drums, the barbeque, and the colour of the house.

15. The complainant’s pre-recorded evidence took place when she was 11 years old.  She affirmed the truth of what she had said in the interviews.  She identified photographs of what she called her “real home”, which was her “mum and dad’s house” when she was living with them.^[34]  She was then cross-examined.  Salient aspects that arose out of the cross-examination were:

1. she had seen the counsellor and discussed the importance of not permitting herself to be touched in private places; after those discussions, and reading some books on the topic, she told the counsellor about the touching by the appellant; after that again she told N about the school incident involving the other children; that led to her telling N about the appellant’s touching;^[35]
2. the account of the appellant pinching her on the fanny was true;^[36]
3. she denied, when it was put to her, that the appellant had never touched on the fanny while she was on the couch; she said he did, and that she was standing up, not sitting down;^[37]
4. she said she could remember that he touched her under her clothes;^[38] and
5. she agreed that on a day at a shopping centre with her mother she told her mother that the appellant had not touched her; but she maintained that he did.^[39]

Police evidence

16. The interviewing police officer (P) gave evidence identifying the DVD recordings of the interviews.  She also identified various photographs of the appellant’s house.  She was cross-examined about the method of interviewing children.  She explained that while normally if a child said “I’m finished” a number of times (as the complainant did in the first interview) the interviewer would stop, it was not an invariable practice to stop, and the complainant’s diagnosis of ADHD meant it was all the more important to obtain as much detail as possible.^[40]  Her behaviour at the second interview was, according to the interviewer, much better as the complainant was medicated and more settled at school:^[41]

“I would believe that she was a lot better compared to the first one for the timeframe that she was sitting there.  For a child with ADHD, I think she did a fantastic job, and it’s quite difficult to sit still for that amount of time.”

17. In re-examination, P gave an indication of how difficult the complainant was to interview:^[42]

“[The complainant] was extremely difficult.  I was given the task to interview [her] for the whole reason – for me in my office everyone did say that I had a fair bit of patience.  I was informed that she did have ADHD and that was something that was going to be a – a hard thing for us, and it also is difficult to be able to interview a child with Department of Child Safety there as well.  For them – I guess not being trained the same, they – way that we are, it is always a – a barrier and – so we come across these hurdles all the time.  [The complainant] wasn’t easy and – but we persevere as much as what – I possibly could, and I would have to say that for the timeframe that she was there for, that – and the big day that she had at school, that what she did was, yeah, quite hard for me.”

The counsellor’s evidence

18. The social work counsellor, F, conducted interviews with the complainant and her brother in a number of joint weekly sessions in 2013.  F described the interview with the complainant when she disclosed what she said had been done by the appellant.  It was concerned with protective behaviour education during which they read a book together.  She said:^[43]

“So when we finished reading the book [the complainant] said to me that no one should touch this private part and I observed [her] use her open hand and she rubbed it on the outside of her school uniform where her vagina is.  I responded by saying that’s correct, ... No one can touch your vagina apart from [you] because it’s private.  [The complainant] then said to me except for daddies.  Daddy touched my vagina.  She went on to say that was bad of daddy.  Daddy shouldn’t have done that.”

19. The complainant explained to her that:^[44]

1. it was the appellant she had referred to as “Daddy”;
2. they were in the lounge room, and her mother, brother and sister were in the next room;
3. the appellant took her clothes off and touched her vagina with his hand, the complainant used a rubbing motion to show how he touched her; when he thought someone was coming he put her clothing back on; the complainant said the touching was on the inside of the vagina;
4. the complainant said it was while she lived with the appellant and her mother, without a supervisor being there; and
5. the complainant had revealed it to F because F was one of her identified safe people.

The foster mother’s evidence

20. The complainant’s foster mother, N, said that the complainant and her brother had come to live with her in 2013.  She explained that she was called to the school one day and when she took the complainant aside she told her that “My daddy touches me there”.^[45]  N explained the conversation in greater detail:^[46]

“So the school rang me and said that [the complainant] had gone to the principal and told the principal that two girls had asked her to go the toilet to have sex.  Now, she didn’t say the word “sex”, but she spelt it, s-e-x.  I said to her “What happens when you go to the toilet to have sex?”, and she said that the girls take their pants off and they rub each other’s private parts.  I said to her that I was very happy that she wasn’t involved in that, that she actually went to the principal and told the principal what was going on.  I said to her “If you didn’t go into the cubicle, though, how do you know what actually happened?  How do you know that’s what they were doing?”  And she said that one of the other girls had told her that that’s what they had done.  And then I said to her, you know, “Did any of the girls touch you?”  And she said no, and I said “That’s good, you know, because nobody should touch you.  You shouldn’t be touching them”.  And then that’s when she said “My daddy touches me here” and motioned to her vagina and stomach.”

21. The complainant told N it happened “when she was on a visit with her dad”.^[47]  She indicated where on her body it happened by a circular motion in the area of her vagina.^[48]

Child safety officer’s evidence

22. L, an officer with the Department of Communities Child Safety Services, gave evidence that she was not aware of any correspondence that was received by the department in June 2012 from the appellant and S, about concerns they had about the complainant’s foster placement and whether she was at risk.

The biological mother’s evidence

23. The complainant’s biological mother, S, gave evidence.  Since the complainant and her brother had been taken into care soon after their birth she had mostly had supervised access with the complainant.  The appellant had spoken to her about his desire to reunite the complainant and her brother with the family.  She and the appellant had been trying to get them back.
24. S said that in 2012 she and the appellant were told about an incident which happened on 29 September 2011 at the B’s household.^[49]  Their solicitors wrote to the department asking that the B’s be investigated and the children counselled.^[50]
25. S said the only time they had unsupervised access was for four months from the end of May 2012 to October 2012.^[51]  Over that time the complainant and her brother stayed over at weekends on about three of four times.^[52]  The television arrangement was such that the complainant would not have able to turn it on herself.^[53]  It was possible that one of the children would have been awake while S and the other two were still asleep.^[54]

The fresh evidence

26. The application to adduce fresh evidence sought to admit evidence from the appellant and Ms Creedy, going to the issue in ground 2, the failure to put evidence of a prior unsubstantiated allegation of sexual abuse.
27. The affidavit of Ms Creedy was as to the efforts made to obtain copies of the instructions given by the appellant to his trial lawyers, and their conference notes, concerning the issue of cross-examining on prior unsubstantiated allegations of sexual abuse.  She also deposed to the efforts to obtain affidavits from the trial lawyers.  That affidavit was overtaken by the affidavits from the trial lawyers, referred to below.

The appellant’s evidence

28. The appellant’s affidavit deposed that:

1. he knew the complainant had made allegations against him in the past (prior to the charge in the present case), that he had touched her inappropriately, and they were false;
2. the police investigated and he was questioned;
3. prior to the complainant giving her pre-recorded evidence he told his trial lawyers about the prior allegations against him;
4. during the trial he had not been shown certain documents from Family Services, nor made aware of their contents; those documents did not concern the allegations of which he was aware; and
5. he could not recall whether he signed anything relating to whether questions should be asked about the prior allegations, nor could he recall if there was any conversation between himself and his trial lawyers, on the day the pre-recorded evidence was taken, about cross-examining the complainant;
6. he could recall being advised by his trial lawyers during the trial that “it wasn’t a good idea to cross-examine the complainant about prior allegations she had made against me as it would look like we were being too harsh on her”; even though he thought they were only referring to the allegations of which he was aware he would not have agreed to that course had he known the contents of the Family Services document; and
7. he signed written instructions on 3 August 2016 (the third day of trial) but did not read them and was not taken through them, especially paragraphs 1 and 2 under the heading “specific instructions”.

29. The Family Services document that the appellant referred to was an internal record which recorded two reports, one made on 23 December 2008 and the other on 6 October 2010.^[55]  It was handed up during a pre-trial hearing on 7 December 2015.  Judgment on that application was delivered on 10 March 2016 and the pre-recorded evidence was taken on 6 April 2016.  The same Counsel appeared for the appellant on the pre-trial application, the taking of the complainant’s pre-recorded evidence and the trial itself.
30. The report on 23 December 2008 concerned information following supervised access when the complainant was three and a-half years old.  She had redness to her vagina and said “Daddy did it in the pool”.  Inquiries revealed that the complainant had not been near a pool on her last access, on 19 December 2008, and a medical examination revealed no evidence of sexual interference.  The complainant was interviewed and, whilst unresponsive, said she was there because “Daddy touched her on the bottom”.  The report concluded:

“In consideration of the medical examination, insufficient disclosures and inconsistency in accounts, insufficient evidence identified for any criminal prosecution.  Child’s father [the appellant] contacted by police and questioned re the allegations, denying that anything inappropriate had ever occurred with his daughter.”

31. The report made on 6 October 2010 detailed the nature of a Child Concern Report given by the Department to Police on 28 September 2009.  It concerned an occasion of supervised access on 25 September 2009, and a comment made two days later by the complainant (who was then four and a-half years old) to her foster carer whilst her nappy was being changed, that she had a sore fanny and that “Daddy hurt my fanny it really hurts”.  The complainant said that “Daddy rubbed his finger on her fanny”.  The report said that the access was supervised at all times but the appellant had changed her nappy at one point.  The report said:^[56]

“This contact was supervised, it could be possible that [the appellant] has been rough when cleaning [the complainant] which has caused discomfort and pain.  It would be highly unlikely that any sexual offences occurred because of the short time frame in which [the appellant] had contact with [the complainant] and that contact was supervised at all times. … There is insufficient to suggest that any offences have occurred.”

32. The instructions referred to by the appellant contained this paragraph:

“I have been taken through the evidence and I give these specific instructions:

1. I instruct my legal representatives not to raise any previous allegations of sexual misconduct which were found to be unsubstantiated;

2. I confirm that I have received advice in relation to my giving evidence in my own defence.  I accept that I would not be required to make the decision regarding my giving or calling evidence until the end of the prosecution case.”

33. Affidavits from three lawyers acting for the appellant at his trial were tendered.  The effect of their evidence is summarised below.

Evidence of the appellant’s solicitor

34. Ms Morton acted for the appellant from November 2013.  When she first saw the appellant she understood that he wanted Mr Moore of Counsel to be retained to act.  The appellant told her that a complaint of sexual abuse against him, made by the current complainant, had been found to be unsubstantiated and was not the subject of charges.  The appellant wanted the previous allegations by the complainant raised as he was of the opinion that it was good evidence of his innocence.  She advised him that “this was a double edged sword and that [she] would require a brief of evidence before she could give advice in respect of his matter”.
35. She had a conference with Counsel and the appellant on 23 January 2015.  Her file note recorded that the topic of abuse by the B’s was raised.  Mr Moore referred to the earlier allegations, saying if they were to be raised the leave of the court was required.  Mr Moore then had ongoing discussions with the DPP about obtaining the Department of Child safety file.
36. Ms Morton explained something of the appellant’s attitude:^[57]

“During the course of my office representing [the appellant] we experienced some difficulties in relation to [his] behaviour.  [The appellant] would become emotional and highest (sic) distressed and would be volatile in his verbal response when receiving advice.  Upon discussing the possibility of a conviction and resulting term of imprisonment, [the appellant] stated “that he would not leave the court room alive” or words to that effect.  Alternatively he would make the statements similar to “you are all working with the prosecution to send me to jail” or words to that effect.  Further, [the appellant] would say words to the effect, “I’ll tell the all what they have done to me, they’ll know, I’ll tell the court what they’ve done”.  As [the appellant’s] matter proceeded to trial he became more agitated.”

37. On 1 August 2016, the first day of the trial, the appellant signed the written instructions containing the paragraphs set out in paragraph [32] above.^[58]  Ms Morton said that she read them to the appellant as he did not have his glasses.  In doing so she took the appellant through the instructions slowly and carefully.
38. She gave the appellant advice on the second day of the trial as to his giving evidence.  The notes of the conference^[59] reveal advice against his giving evidence for these reasons: (i) all he could say is that he did not do it, and that was already said by the not guilty plea; (ii) Mr Moore felt strongly that he should not give evidence; (iii) it could open the appellant up to cross-examination on his criminal record; even though it was not particularly relevant the Crown would try to get a reaction out of him; (iv) he would lose the right of last reply; (v) there was a strong probability that if he did give evidence he would be more than likely found guilty.
39. On 3 August 2016, the appellant signed the written instructions that he not give evidence.

Evidence of the appellant’s second solicitor

40. Ms Varley commenced acting for the appellant in July 2015.  Apart from what had been said by Ms Morton she added:

1. on 7 September 2015, she met the appellant prior to a pre-trial application to exclude the s 93A statements; he signed written instructions which included that he sought a ruling that the s 93A statements were inadmissible “due to the actions of the police in leading the evidence of the complainant child and due to the harm it would cause [her]”;^[60] he did not raise other issues that day;
2. on the morning of 6 April 2016, the day that the pre-recorded evidence was to be taken, she spoke to the appellant before the hearing; she “confirmed that in accordance with previous instructions at the previous conference that Mr Moore was not going to ask too many questions in regard to the previous allegations that had been previously disclosed to the Department of Child Safety”; her note at the conference reads “not going to ask too much, inconsistent stories”;^[61]
3. on 29 July 2016, prior to the trial, she and Mr Moore had a conference with the appellant; he was upset, angry, loud and abrupt, making allegations that her firm had previously been employed by Police Prosecutions; he said he wanted to speak out at the trial about previous injustices in the legal system; he was warned that such behaviour could lead to a mistrial;  the appellant continued to be very angry, “at some points … yelling at Mr Moore and myself”; he said he would never leave the court room alive, prompting Mr Moore to question him about his mental health and medication; and
4. Ms Varley’s notes of the 29 July conference^[62] reveal that she discussed the appellant’s giving evidence and that if he did so his criminal history would be called into question; they discussed the complainant’s previous allegations of sexual activities “between the children including [the complainant]”; she deposed that her notes show that the appellant raised those matters as happening at the B’s residence while the complainant was under care, and the appellant wanted those matters raised at trial; that was discussed and Mr Moore advised that he would “assess the evidence during the court (sic) of the trial in respect of the previous allegations of sexual misconduct at [the B’s residence] and at the school and how it would be raise[d]”.

41. She said that “it was a decision to be made prior to the commencement of the trial in regards to whether this evidence would be brought up at the trial”.  Mr Moore discussed raising previous allegations of sexual abuse and that “there was some risk in this course of action”.  The appellant was “very agitated and became abusive when questioned in relation to this issue”.^[63]
42. Ms Varley’s notes of that conference read:

“best way to run the case

decision- under no circumstances should he give evidence

criminal history – dangerous drugs and traffic matters

strongly held opinion

false allegations cannot be mentioned

lead by prosecution know to be untrue

raised in the old children court matters

could not have happened

counsel: judgment calls – has to make it

will raise what happened at the [B’s] residence

run the case as simply as possible.

Crown’s case has holes in the matter

[the complainant] has admitted - department kept asking her

1. ‐common sense; counselled and investigated by DOCS
2. ‐using imagination – other sexual stuff going on

brainwashing by DOCS

could not have happened on Tuesday and she never lived with [the appellant]

unfair & traumatic.”

Evidence of the appellant’s trial counsel

43. Mr Moore provided an affidavit in which he said he had acted for the appellant in earlier proceedings in the Children’s Court.  Because of those proceedings the appellant was aware of previous allegations of inappropriate sexual conduct, made against him by the complainant.  The appellant was also aware of “some such allegations because he had been questioned by the police”.  As to the previous allegations Mr Moore said:

1. he could recall two allegations (one referred to in the Family Services documents as involving a pool) and another where the complainant had said something to a foster father; he could not recall the second incident mentioned in the Family Services documents;
2. “the existence of a third uncharged incident only strengthened the reasoning behind my recommendation that the prior allegations not be raised in the trial”; the “main forensic reason against raising those uncharged [acts] was that raising them would prejudice a jury against the Appellant”;
3. he discussed with the appellant that “insufficient inconsistent evidence to warrant prosecution on the earlier alleged acts did not necessarily mean they did not occur, especially in the mind of a jury”; Mr Moore’s concern was that a jury may well feel that “where there is smoke there is fire” and that “by raising the uncharged acts the Appellant would in his trial have had to create doubt over not one but four alleged incidents”; and
4. Mr Moore’s advice to the appellant was “that it was unnecessary and involved risk to take the step, especially where there were other significant weaknesses in the prosecution case”.

44. The other evidence from Mr Moore was in the form of an email on 19 July 2016 to Ms Varley, about two weeks before the trial.^[64]  Relevantly it stated:

“The Crown have finally spoken to me and they are NOT prepared to put in the [the complainant] has made a sexual complaint about [the appellant] previously by consent.  They are taking the issue that I did not put to [the complainant] that she had made that previous complaint.  I obviously did not do it because I did not want to open the Pandora’s box of (i.e. – “yes he did touch me previously”).

My examination of the DOCS records show the supervisor … accepted there were times [the appellant] and [the complainant] were not in his sight even during supervised time.  And if we run with the pool issue a jury could just say she got the date wrong.  Ultimately, raising any of these issues creates “where there is smoke there is fire” line of reasoning for a jury, and raised the possibility that evidence is led from [the complainant] that there were these other incident which are admissible now, as evidence of sexual interest.

I have from day dot had mixed feelings about going there with the untrue complaints, and this latest taking of the Brown v Dunn point just confirms my inclination to stay away.  We will need [the appellant’s] instructions though…”.

Discussion

45. I intend to deal with each ground, mentioning the submissions in respect of each in the course of dealing with that ground.

Ground 1- failure to elicit evidence of previous allegations

46. The appellant submitted that the failure to ensure that the evidence of the prior unsubstantiated allegations (raised in the Family Services documents referred to in paragraphs [29]  to [31] above) was put before the jury could not be explained as a rational tactical decision made in order to avoid a forensic risk.^[65]  This was because (i) the previous allegations were found to be unsubstantiated; (ii) the current charge was another allegation of vaginal touching; (iii) the complainant had said in her interviews that the appellant had never touched her “rude parts before”; (iv) that would have had a material impact in the appellant’s favour, because the case turned on the uncorroborated evidence of the complainant.
47. The appellant relied upon comments made by the learned judge who dealt with the pre-trial application, relating to her Honour’s assessment of the case, and specifically:

“It seems to me that the likelihood of a conviction is slight.  Even if a conviction was secured at first instance, the Court of Appeal would undoubtedly give serious consideration to a submission that the verdict was unsafe and unsatisfactory.”

48. Counsel for the appellant conceded that the test in relation to establishing a miscarriage of justice was that set out in TKJW, namely an objective test of considering whether or not it resulted, or could have resulted, in a forensic advantage.  It was accepted that if it was explicable on that basis, there could be no miscarriage of justice.
49. For the Crown it was submitted that the evidence in the Family Services documents was not fresh evidence as they had been available at the trial.  The appellant’s former legal representatives had deposed that the matter was discussed and the appellant accepted their advice.  That was supported by the file notes and the instructions signed by the appellant.  Because a miscarriage of justice was asserted, the focus must be “upon the trial and conviction of the accused person and not the professional standards of the accused’s counsel.  Was what happened, or did not happen, at trial a miscarriage of justice?”^[66]  The decision not to raise the prior allegations was within the, “wide discretion that counsel, as an officer of the court, has to conduct the trial in the manner that he or she thought was in the best interests of the accused”.  It did not deprive the appellant of a chance of acquittal that was fairly open.
50. In my view, there were clear tactical reasons why the previous unsubstantiated allegations were not raised.  One was that the appellant wished to defend the case on the basis that the complainant’s allegation was unsubstantiated.  If the earlier complaints were raised there would be further unsubstantiated complaints in respect of each of which there was the likely forensic problem of having to answer them in some way.  A second was that the jury may well think that there was something in them, even though they were not formally proved.  Even acknowledging that the appellant bore no onus of proof, his Counsel was not in a position to show the jury that they were baseless.  These were the factors that the appellant’s trial Counsel referred to in his affidavit and the pre-trial email: see paragraphs [43] and [44] above.
51. Reliance on the Family Services records as providing a solid foundation to show that the allegations were unfounded was, in my view, fraught with danger.  The incidents referred to occurred when the complainant was three and a-half and four and a-half years old, and therefore not necessarily reliable as to dates or times.  The first in time suffered because it was said to have occurred in a pool and there was no investigation beyond the alleged date about interactions in a pool.  The second in time^[67] was not unequivocally an allegation of sexual impropriety, as the report conceded.  That the investigations concluded that there was insufficient evidence to identify an offence, did not exclude that the events may have occurred.  There was a risk that the jury might think that there was, in any event, something to the complaints.
52. Reliance on the complainant’s statement in her s 93A interview, that the appellant had only touched her the one time, was also fraught with danger.  The context of the interviews was what occurred during the only period of unsupervised access.  The complainant was asked in the first interview:^[68]

“Has - has Daddy touched you on your rude parts before?  Or has he-

Complainant:  No.

How many times has Daddy touched you on your rude parts?

Complainant:  Only that day, um –

Only that time?

Complainant:  Only on that Tuesday.

Only on that time?  Okay.

Complainant:  Only on Tuesday.”

53. It is possible that if cross-examination proceeded on the basis that she was therefore lying when she said she had been touched when she was three or four, the complainant may well have said that she was only answering as to that period of access, or had forgotten the earlier times at the time she answered in the interviews.  It has to be noted that she was not medicated during the first interview and the transcript and DVD show her to be restless, distracted and finding it difficult to stay focussed or concentrated.  In the end all that one might get from that course is another inconsistency, rather than a demonstrated false complaint.
54. Ultimately the difficulty faced by this ground is that the appellant’s trial Counsel made a conscious decision not to raise the previous allegations when the complainant gave her pre-recorded evidence, and adhered to that decision at the trial.  That decision was a rational tactical decision made to avoid the forensic risk that his client’s chances of having the jury doubt the complainant’s version of events would be harmed if the evidence was led.  That was a course taken on instructions from the appellant, after advice from Counsel.  In my view, it falls squarely within what was said in TKWJ:^[69]

“[16] It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial.  But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused.  For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise.  And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations.  Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative.  That does not make them wrong or imprudent, or expose them to judicial scrutiny.  Even if they are later regretted, that does not make the client a victim of unfairness.  It is the responsibility of counsel to make tactical decisions, and assess risks.  In the present case, the decision not to adduce character evidence was made for an obvious reason: to avoid the risk that the prosecution might lead evidence from K.

[17] Trial counsel made a decision not to call certain evidence.  Viewed objectively, it was a rational tactical decision, made in order to avoid a forensic risk.  It did not make the trial unfair, or produce a miscarriage of justice.”

55. To succeed on this ground the appellant has to establish that he lost a chance of acquittal that was fairly open, by reason of the failure to adduce the evidence of the previous allegations.^[70]  I am far from satisfied that the course taken denied the appellant a chance of acquittal that was fairly open.  For rational, tactical reasons, and to avoid a forensic disadvantage, the appellant’s Counsel decided, on the appellant’s instructions, not to cross-examine the complainant about them at the pre-recording.  Unless the appellant made an application to have her cross-examined again there was no chance of putting to her that the allegations were false.  Further, unless the records went in by consent the authors would have to be called to prove them, and the question of the admissibility of their opinions as to whether the allegations were substantiated would have to be addressed.  For the same reasons as applied before the trial, the appellant’s Counsel was not prepared to run the risk of harm to his client’s chances of acquittal, by trying to get the evidence in.  In my view that meant that there was no fair chance of acquittal based on an attempt to prove that the previous allegations were false.  As was said in TKWJ:^[71]

“[25] Where decisions taken by counsel contribute to a defect or irregularity in the trial, the tendency is not to inquire into counsel’s conduct, as such, but, rather, to inquire whether there has been a miscarriage of justice, or, if the proviso to the criminal appeal provisions is engaged, whether ‘no substantial miscarriage of justice has actually occurred’.  In that exercise, the question whether the course taken by counsel is explicable on a basis that has or could have resulted in a forensic advantage is a relevant, but not necessarily a decisive, consideration.

[26] The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question ‘deprived the accused of a chance of acquittal that was fairly open’.  The word ‘fairly’ should not be overlooked.  A decision to take or refrain from taking a particular course which is explicable on basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open.”

56. This ground fails.

Ground 2 – incorrect advice about giving evidence – denial of informed choice

57. This ground arose out of a submission made in the Crown’s appeal outline:^[72]

“When taking instructions from the appellant about whether he would testify at his trial his former lawyers advised him his criminal history would be called into question or may be admissible.  The appellant’s criminal history was described by Butler SC DCJ as being old, consisting largely of drug offences and assault with a more recent offence of obstructing police.  The respondent concedes that there is nothing about the conduct of the defence case that suggests an application to cross-examine on the criminal [history] would have been allowed.  A question may arise whether the advice to the appellant has produced a miscarriage of justice.  In circumstances where the appellant has not raised a complaint and has not suggested he would otherwise have testified at his trial it is submitted the advice has not resulted in a miscarriage of justice.”

58. The appellant referred to the advice reflected in the contents of the note, set out in paragraph [42] above.  His Counsel accepted that it meant the appellant’s lawyers held the strong opinion that he should not give evidence.
59. Reference was then made to the contents of the note referred to in paragraph [38] above.  That note reads:

“discussion regarding giving evidence [the appellant]; discussion [the appellant] after court

advise – only benefit – can say it didn’t happen; have already said that by pleading not guilty

P Moore feels strongly about [the appellant] not giving evidence

AEM – open up to cross-examination; criminal history not that relevant; but the prosecution (Crown) – will try & get a reaction out of him

lose the right of last reply

knowledge about the system

strong probability – if he gave evidence would be more than likely found guilty

no confidence in the decision maker – [the appellant]

to consider overnight”

60. Following that conference the appellant signed the instructions which included the statement: “I’m aware that my criminal history may be admissible if I do give evidence on my own behalf.”^[73]
61. The appellant’s criminal history, summarized by the learned trial judge when sentencing,^[74] was long, starting in 1996.  It involved “various drug offences” involving marijuana, “some offences of assault”, and a recent offence of obstructing police.  There was no similar offending to that of which he was convicted.  That evidently formed the basis of the concession by the Crown that there is nothing about the conduct of the defence case that suggests an application to cross-examine on the criminal record would have been allowed.
62. Several aspects of the advice given to the appellant, prior to his decision not to give evidence, were correct.  They were: (i) his behaviour in the dock will affect the outcome;^[75] (ii) he would be exposed to cross-examination;^[76] and (iii) he would lose the last right of reply.^[77]
63. The first two aspects were, no doubt, affected by the assessment made by the trial lawyers, of the appellant’s likely performance in the witness box.  That led to Mr Moore’s expressing two strongly held opinions: first, that he should not give evidence, and secondly, that there was a strong probability that if he did so he would more than likely be convicted.^[78]  The appellant’s behaviour at the conferences, referred to in paragraphs [36], [40](c) and [41] above, would have given cause to doubt that he would survive cross-examination intact, or, at the least, caused the lawyers to be concerned about the risk of alienating the jury.  Seen in the light of that, the second aspect (being subject to cross-examination) is not neutral.
64. It has to be observed that the appellant did not, in his affidavit, refer to the advice about his criminal history nor suggest that his decision whether to give evidence would have been different had the advice about his criminal history not been given.  The point was raised a week before the appeal was heard.  No further affidavit from the appellant was filed, and no adjournment was sought to adduce further evidence from him.
65. Accepting that there was no evidence from the appellant that he would have taken a different course, the appellant’s contention was that he was denied the chance to make an informed decision.
66. The precise nature of the advice must be understood.  Ms Varley said that on 29 July 2016, the appellant was told that if he was to give evidence his criminal history “would be called into question”.^[79]  Then on 2 August 2016, he was told that his criminal history “would be open to cross-examination by the Prosecution”.^[80]  The note made at the time reads that Ms Morton actually said “open up to cross-examination; criminal history not that relevant; but the Prosecutor (Crown) will try and get a reaction out of him”.  Ms Morton’s affidavit says simply that the notes “reflect [the appellant] would be open to cross-examination by the prosecution, in particular his criminal history would be called into question”.^[81]  Then the appellant signed the instructions that said he was “aware that my criminal history may be admissible if I do give evidence on my own behalf”.^[82]
67. The advice in its final form was that if he gave evidence his criminal history would be called into question and open to cross-examination, but even though it was not that relevant the prosecutor would try and get a reaction out of him.  In my view, properly understood, that advice was not an unequivocal statement that the Crown would be able to cross-examine on his criminal history, or that it was permissible as opposed to “may be” permissible, or that it would be damaging.  Rather the advice was that there was a risk that the Crown would try to do so, and even if they failed because the history was not relevant, there was nonetheless a risk that the attempt to do so would bring forth a reaction from the appellant.
68. There is no evidence that the appellant understood it any other way.  So understood, I am unpersuaded that the advice was wrong.  There was a risk that the Crown might try to cross-examine on the history, and given that the application to do so would arise while the appellant was in the witness box, even if that failed, the appellant might react in a way that would not assist his case.^[83]  On that basis the appellant was not put in the position of making an uninformed decision, and there is no miscarriage of justice.
69. Even if that part of the advice about the dangers of giving evidence was incorrect, the balance was correct.  The appellant relied on that as part of the reason for his decision.  Further, even if advice been given that cross-examination on the criminal history would not be permitted, I do not consider that the evidence supports a finding that the appellant would have relied on that and given evidence.  In fact the evidence supports the contrary finding.  On the conference on 29 July 2016, the “best way to run the case” was discussed.  The appellant was told that the decision, based on the lawyers’ “strongly held opinion”, was that “under no circumstances should he give evidence”.^[84]  In that context he was told that his criminal history “would be called into question”.  He did not decide then that he would not give evidence.
70. At the conference on 2 August 2016, he was told that his trial Counsel felt strongly about his not giving evidence, and in that context the appellant was told that his criminal history was not that relevant but the prosecutor would try to get a reaction out of him.  Then he was told the other disadvantages relating to loss of the last reply and increased probability of a conviction.  If the advice that day about the criminal history was, instead, that the prosecutor could apply to cross-examine and, even though it was likely to be refused, the prosecutor might still get an adverse reaction from the appellant that would potentially harm his case, it is my view that the appellant would probably have made the same decision, namely not to give evidence.  I am fortified in that conclusion by the fact that even though the appellant knew this point was raised a week before the appeal was heard, no further evidence from him was adduced.
71. In R v Craig,^[85] this Court dealt with a similar contention, however the case is distinguishable from the present for reasons which follow.  That was a case where advice had been given to the accused that it was likely that if he gave evidence he would be cross-examined on his prior history.  That advice was incorrect, but at the same time he was correctly advised that he would be cross-examined on the events of the night of the offence.  As to that prospect there were stark differences between the version he gave his lawyers (recorded in their notes of a conference with him) and his police interview, on potentially crucial facts.  The accused instructed his Counsel that he did not wish to be cross-examined as to the events.
72. It can be seen that Craig was different from this case in that the advice there was that it was likely he would be cross-examined on his history, whereas here the advice was that the prosecutor could apply to do so but even though that might fail because the history was not that relevant, the attempt might produce an unhelpful reaction from the appellant.
73. Having referred to the passage from TKWJ set out in paragraph [55] above, Gotterson JA^[86] cited a passage from Nudd:^[87]

“Because of the impossibility of predicting every form of misfortune or error that may result in a miscarriage of justice; because there are cases where an understanding of why something happened, or did not happen, may be material to a conclusion as to whether there was unfairness; and because such an understanding may reveal that there is no explanation for what occurred other than counsel’s ineptitude or inexperience, courts of criminal appeal do not overlook the possibility that the conduct of counsel may result in such a failure of process that there is a miscarriage.”

74. The Court examined the question of whether a miscarriage of justice had occurred as a consequence of the incorrect advice.  Gotterson JA referred to the advice that the accused would be subject to cross-examination as to the events, and said:^[88]

“[43] However, the advice with respect to the latter was correct.  There were stark differences between the version in the handwritten notes and in the police record of interview concerning the crucial matter of whether or not the appellant had wrested the knife from the deceased’s control before her neck was cut.  Had his oral testimony accorded with his handwritten version, then the appellant would have been cross-examined on the basis that he had given a different version to police and that version would have been proved.  Evidence in that form would have had a pronounced adverse impact on the appellant’s credibility.  It would have severely undermined the scope for defences of accident or self-defence.

[44] There was then a sound forensic reason for the appellant not to testify.  He was correctly advised about that reason.  His decision not to testify, insofar as it was justified by that advice, was not the consequence of his having been misled by incorrect advice.  That he did not give evidence in these circumstances did not result in a miscarriage of justice.  The fact that he was given an additional, but inaccurately expressed, reason not to testify did not diminish the role of the former as a rational reason not to testify, or, of itself, give rise to a miscarriage of justice.”

75. On that aspect the appellant is in the same position.  For the reasons in Craig even if part of the advice was incorrect, the decision to not give evidence was not made as a consequence of being misled, and no miscarriage of justice arose.
76. This ground fails.

Ground 3- misdirection on the jury question

77. After the summing up was completed and the jury had retired, the jury asked this question: “Is the date shown in Count 1 as the period of the alleged offence have to be satisfied to find a guilty verdict?”^[89]  The direction given in response was:^[90]

“The answer to the question, ladies and gentlemen, is yes.  The reason for that is this, that the prosecution case, as it’s been presented to you, has always been that this offence occurred and could only have occurred during the period of unsupervised weekend access by these parents to the children.  That is that the period on the indictment which is … the indictment which you’ve got before you says between the 31^st of May 2012 and the 1^st of October 2012 at Mackay.  Now, … that is the period … that is referred to in the admissions.  Admission 7, the defendant and [S] had unsupervised access to the twins from the end of May 2012 to the start of October 2012.  Unsupervised access between the defendant and the twins did not cease because of concerns about sexual abuse.

So the prosecution case is that the unsupervised access occurred during that period and that was the only time when there was the opportunity for the offence to have been committed as the child described it.  So you would need to be satisfied beyond reasonable doubt that it did in fact occur between those dates.  Now, … it may be of assistance to you, just in relation to this, if I just remind you of the two passages in the evidence that are the only passages, as I understand it, that specifically relate to when the offence occurred.”

78. The learned trial judge then reminded the jury of two passages of evidence.  The first was the evidence of what the complainant had said to F: summarised at paragraph [19](d) above.  The second was what the complainant said in the first police interview as to where it happened: referred to in paragraph [12](f) above.
79. Before this Court the appellant submitted that the answer “yes’ was correct but when the learned trial judge went on to remind the jury of relevant passages of evidence there was a failing to identify a very relevant passage of evidence such that the jury were not reminded of it.  It was said that the learned trial judge was led into error by the responses given when his Honour was trying to identify the relevant parts to put to the jury.
80. The sequence is as follows.  The learned trial judge identified that the jury had to be satisfied that the offence occurred between 31 May 2012 and 1 October 2012.  That was agreed.
81. During the summing up the learned trial judge had referred to the address by Counsel for the appellant, when he said that it was “impossible for the offence to have been committed”.^[91]  As to that the learned trial judge said:^[92]

“In relation to impossibility, he submitted to you that the child said it happened when she was eight.  That she was eight then and that that was inconsistent with it happening during the unsupervised period.  He said to you that there was no evidence from [the complainant] that it happened in the unsupervised period.  It’s a matter for you, ladies and gentlemen, what the evidence is and the passage that’s relied upon here by both counsel is this one in the evidence of [F]:

I recall asking [the complainant] when that had occurred and [the complainant] talked about it being when she was eight years old and said that she’s eight now.  [The complainant] talked about it happening when she lived with her mum and dad and she was specific around that because she said that Shelly wasn’t there and I understood Shelly to be the person that supervised contact.

That’s the passage.  The Crown relies upon that saying, well, when [the complainant] talked about it happening when she lived with her mum and dad, that that’s a reference to this period of unsupervised contact and that she specifically said that Shelly wasn’t there and that supported that view.  As I understand the defence submission, it’s that you couldn’t draw the inference from that that, in fact, she was living with her mum and dad then.  She was only there on a weekend visit and that, therefore, what [the complainant] said is just not true at all.  That she’s not talking about anything that could have happened.  It’s a matter for you what that evidence means, ladies and gentlemen.  What is clear from it, that even on the Crown position there’s an internal inconsistency there because we know from other sources and from the admissions that the unsupervised period was when [the complainant] was seven and not when she was eight.  So even on the Crown version she’s wrong in some regards in relation to what she says there and there’s an internal inconsistency on the defence version – on the defence submission you would act upon what the child says, that she says it happened when she was eight.  She knew when her birthday was.  That it must have – on her account, must have happened at a time which wasn’t when the unsupervised period was and, therefore, it was impossible that it happened.”

82. After the jury retired the prosecutor submitted that the jury ought to be reminded of “all the evidence in relation to that”.^[93]  By that he meant not only what had come from F, but what had been said in the police interview.^[94]  Defence Counsel resisted that, submitting that “I’m a bit concerned that raising this point draws attention to it but I’m in your Honour’s hands.”^[95]  Counsel then reminded the learned trial judge of the interpretation he had put on the passage from the interview when he addressed the jury.
83. That issue was resolved against the prosecutor, the learned trial judge saying:^[96]

“But the real question is whether it’s so significant as to raise it at this stage.  I mean, we could listen to what I said again but I think even if I said it was, the only reference I’m reluctant to correct it at this stage and give this aspect more weight than it really should have in all the circumstances.”

84. About an hour and 20 minutes later the jury note in question was delivered.  The prosecutor’s position was as set out above, and he put it again in terms of having been his submission at the end of the summing up, that the jury should be reminded of all the evidence on the point.  When he was asked by the learned trial judge to identify the passage from the police interview that was done by page and line number, page 25 lines 20 and 29.^[97]  Once again Defence Counsel resisted the jury being reminded of the evidence.^[98]
85. The learned trial judge proposed in argument that he could “easily say to them to assist you there – I can simply read to you the two passages in the evidence which are the only evidence that relates to when the offence occurred, and read the two passages, and they’re quite short”.^[99]  The following submission for the appellant then occurred:^[100]

“MR MOORE:  Yes, your Honour.  When your Honour referred to the single passage earlier when you – your Honour made the point and that it was relied upon by both defence and prosecution … in relation to the passage that my learned friend asked for, I specifically addressed that in my address to the jury.  I’m wondering if your Honour could simply – we might say that that’s evidence that both – once again, both defence and prosecution relied upon.  Simply that – remind the jury of the ambiguity that we’ve alleged in that regard because of reference to the carers, especially in conjunction with admission 5, which is that at that time they were living with [X].  So they would have been taken to her house in between contact visits.  But if your Honour can just make a point that … it’s relied upon by both parties I’d be satisfied.”

86. Defence Counsel then made it clear to the learned trial judge that his case on this point was that the complainant “never lived with [the appellant and S]”.^[101]  After some further debate with the learned trial judge the appellant’s Counsel then said:^[102]

“MR MOORE:  Can I ask this, your Honour?  I perhaps wasn’t clear.  All I’m asking is that your Honour again, as you did before, in fairness, point out that that is another passage but … that … contains evidence relied upon by the prosecution but it is also relied upon by defence and I don’t require it to be taken any further.”

87. The redirection set out in paragraph [77] above then followed.  Shortly after that the jury returned with the verdict.
88. The appellant submitted that two other passages were relevant and should have been read to the jury.  They were from the second police interview:

“[Interviewer]:  Okay.  Okay.  So where did this happen?

[The complainant]:  Um, in the lounge room at my real home when I was six.

[Interviewer:  In your lounge room at your old - in your-

[The complainant]:  Real.

[Interviewer]:  --real home when you were—

[The complainant]:  When I was six.”^[103]

and

“[Interviewer]:  Okay.  Now, you said that this—

[The complainant]:  [INDISTINCT].

[Interviewer]:  happened in your lounge room?

[The complainant]:  Yeah.

[Interviewer]:  At your real home?

[The complainant]:  Yeah.

[Interviewer]:  So when did this happen in your lounge room at your real home?

[The complainant]:  Like at 8 o'clock.

[Interviewer]:  Okay.  When I say ‘when’ - you said that it was your real home when you were six years.  What do you mean by that?

[The complainant]:  When I was - when I only six years old and he did it.

[Interviewer]:  Okay.  And how old are you now?

[The complainant]:  Nine.”^[104]

89. The passages read to the jury made several things plain.  The complainant said the incident happened: (i) when she was living at her “real home”; (ii) the “real home” was the one where the appellant and S lived, as she identified in the pre-recorded evidence, by reference to photographs;^[105] (iii) it was time when the complainant was not living in care (she was not being taken to carers); she made it clear when she said it was when she was not being taken “to [N’s] or [X] or [Y], all those, the carer or to, yeah, [Z]” and it was when they were living “with Mum and Dad”.^[106]  What the complainant plainly said was that it occurred at a time when she was living, unsupervised, with the appellant and S.  By the admissions there was only one such period, and that was the period in the indictment.
90. The submission was that the significance in the additional passages was that the complainant there said she was six, when she was eight when she lived with the appellant and S.  However, that simply means that the result would be another inconsistency.  The more significant feature about the additional passages was that the complainant said again that it occurred during the period of unsupervised access when he lived at her real house.  The jury had already been told that the prosecution case was that it could only have occurred in the period of unsupervised access, which was the period in the indictment.  They were also told that admission 7 was that the only time of unsupervised access was the same period.  And that period of unsupervised access only occurred at what the complainant called her “real house”.  The passages read to them in the redirection told them that complainant had said, when speaking to F, it occurred when she was eight.  They already knew that was wrong as the complainant’s birth date in the admissions meant she was under eight when she lived with the appellant and S.
91. Given the stance of the appellant’s Counsel at the trial, referred to in paragraphs [85] and [86] above, and the resistance to the extra passages being read, it is difficult to understand how the failure to read even more passages has resulted in a miscarriage of justice.  It was not sought by the appellant’s counsel, and to have read more than was agreed would have served only to emphasise to the jury that there was a consistency in the complainant’s identification of where and when the incident occurred.
92. I am unpersuaded that any miscarriage of justice has occurred.  This ground fails.

Ground 4 – unreasonable verdict

93. In a case where the ground is that the conviction is unreasonable or cannot be supported having regard to the evidence, SKA v The Queen^[107] requires that this Court perform an independent examination of the whole evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt.  It is also clear that in performing that exercise the Court must have proper regard for the pre-eminent position of the jury as the arbiter of fact.
94. In M v The Queen the High Court said:^[108]

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations.”

95. M v The Queen also held that:^[109]

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”

96. Recently the High Court has restated the pre-eminence of the jury in R v Baden-Clay:^[110]

“[65] It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is “the constitutional tribunal for deciding issues of fact.”  Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.  Further, the boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.

[66] With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury.  Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court “must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

97. The appellant accepted that the learned trial judge summed up on the use of inconsistencies in a way that could not be criticised.  It was also accepted that the learned trial judge brought to the jury’s attention in relatively strong terms some of the inconsistencies in the complainant’s evidence.  The submission was that the following inconsistencies made the case one where the jury should have had a doubt about the appellant’s guilt:

1. the evidence of the complainant was uncorroborated;
2. the complainant was very young at both the time of the offence (seven as per the charge date) and when she provided her s 93A statements (aged eight and nine);
3. the complainant has ADHD and it is clear from both s 93A statements that there were considerable difficulties with her concentration and focus;
4. the complainant admitted that she told her mother that the touching did not occur although it is conceded that the question was poorly worded and that this was not explored with the complainant’s biological mother in her evidence at the trial;
5. the complainant’s disclosures were not spontaneous but rather occurred after discussion about sexual topics;
6. to the knowledge of the appellant, at the time that the complainant says the abuse occurred, the complainant was receiving counselling, at the appellant’s instigation, for sexual matters as a result of the incident that occurred between the complainant and her twin brother on 29 September 2011 – it is unlikely the appellant would commit sexual abuse in such circumstances;
7. there are inconsistencies in the complainant’s evidence that cannot be explained by age alone or ADHD; and
8. the inconsistencies include, but are not limited to:
   1. her age when the offence occurred, which ranged from six years, to “a long time”, to “when she was 8 years of age and said that she’s eight now”, when in reality there were only three to four occasions when it could have occurred when she was aged seven;
   2. she stated that it occurred when she was “living with Mum and Dad” and on a Monday and then said a Tuesday, when in reality she never “lived” with her parents and only had unsupervised access on three to four weekends;
   3. in a lot of detail she explained that the rest of her family were sleeping, which changed to them being awake and playing games, and then her mother making lunch;
   4. she mentioned in the first s 93A statement that the touching also included pinching which was never mentioned again, but this was confirmed in the pre-record;
   5. that the touching occurred when she was sitting on the lounge watching “High 5” and her father was sitting on the ground, but in cross-examination in the pre-record said that it occurred when she was standing up;
   6. the complainant said that the only person she had told was F when there was also another recent complaint witness, her foster mother; and
   7. the complainant told F that the touching was on the “inside” of her vagina when at all other times the complainant says it occurred on the outside.

98. The directions from the learned trial judge included that some inconsistencies were to be expected “because it’s natural enough for people who are asked on different occasions, particularly where there has been a passage of time, to repeat what happened at an earlier time, to tell a slightly different version each time”.^[111]  They were also directed that they could accept and reject such parts of the evidence that they thought fit, and it was a matter for them to judge whether a witness was telling the truth and correctly recalled the facts and whether a witness was reliable.^[112]
99. The jury were also directed that witnesses might find the court environment distracting, and that that the circumstances in which the complainant was asked to give her account to the police and then in the courtroom “would be a very unusual one for such a young child”.^[113]  They were told to weigh the effect of inconsistencies and discrepancies in assessing reliability.^[114]  Then the jury were directed in a more specific way about the complainant’s testimony, telling them to look at various factors, such as: (i) could the inconsistency be from innocent error or faulty recollection, or was it an indication of falsehood; (ii) they should carefully evaluate her evidence in the light of other evidence; (iii) the Crown case was dependant on her evidence being honest and reliable; and (iv) she was quite young, a seven year old child, at the time.
100. The jury were warned that it would be dangerous to convict on the complainant’s evidence unless, after scrutinising it with great care, and in the light of other factors, they were satisfied beyond reasonable doubt of its truth and accuracy.^[115]  The other factors were: (i) her age; (ii) the eight month delay in complaining; (iii) inconsistencies in her account, such as the nature of the touching, namely touching versus pinching, and pinching not being mentioned in the second interview; and touching on the outside or inside; (iv) inconsistencies as to where it occurred in the house, and what the others were doing (asleep or in other rooms or playing a game); and (v) the improbability of the incident happening when the appellant and S had gotten their solicitors to write to the department demanding an investigation and asking for the complainant to be counselled.^[116]
101. The jury were reminded of what had been said in addresses.  Things raised by the defence were:^[117] (i) that she may have made a false complaint to please adults in her life, because she was concerned she might be punished; (ii) the complainant told her mother she had not been touched; (iii) the way her interview was conducted forced her to stick to the story she told F for fear of being arrested; (iv) the interview persisted long after she wanted to stop, which showed she did not want to persist in the lie; (v) the statements she made to N and F were in the context of counselling about sexual matters; (vi) the complaints were out of fear of the police and to please those to whom she was speaking; (vii) apart from the inconsistencies there was the improbability that the incident would occur in broad daylight with others in the house; (viii) there was the impossibility of it happening, because she said she was eight when it happened and the unsupervised access occurred when she was younger than that; further she said she was living with her parents when she never did.
102. As to the point raised about the inconsistency of the complainant saying she was eight when it happened but it having happened when she was on the unsupervised access period, the learned trial judge directed the jury in these terms:^[118]

“What is clear from it, that even on the Crown position there’s an internal inconsistency there because we know from other sources and from the admissions that the unsupervised period was when [the complainant] was seven and not when she was eight.  So even on the Crown version she’s wrong in some regards in relation to what she says there and there’s an internal inconsistency on the defence version – on the defence submission you would act upon what the child says, that she says it happened when she was eight.  She knew when her birthday was.  That it must have – on her account, must have happened at a time which wasn’t when the unsupervised period was and, therefore, it was impossible that it happened.”

103. That review of the summing up is sufficient to show that almost all of the inconsistencies mentioned in the appellant’s submissions to this Court were raised squarely with the jury by the learned trial judge or in address.  Those that were not do not add to the weight of those that were.
104. One difficulty with the appellant’s submissions is that the complainant was very young when the incident is alleged to have occurred (about seven and a-half), when she was interviewed (eight and nine), and at trial (eleven), and she had difficulties in concentration because of her ADHD.  The jury were well aware of those factors and they provide a ready basis upon which the jury could have rationalised the inconsistencies in her evidence.
105. For example discrepancies in the account of her age when the incident occurred are not, in my view, compelling when one has regard to the fact that she consistently said that it occurred at one time that was unusual in her life.  That was when she was living with her parents in her “real home”.  There was only one period in her life when that was the case, as she had been in foster care from soon after she was born.
106. The same is the case with the criticisms based on her saying that she was “living” with her parents.  It is easily understood as the way in which a young child would phrase the time when she stayed with her parents in her “real home”.  One would not expect a child to necessarily use the word “live” in a technical way.
107. Likewise, confusion about precisely where others were in the house and what they were doing does not, in my view, rise to the level that it would overwhelm the consistent account of what, happened, and when and where.  The complainant was very young and there was no reason for her to memorise the locations and activities of others.  The jury may well have taken the view that the fact that she tried to answer such questions does not detract from the overall consistency of her evidence.
108. Further, the jury could well have thought that there was a consistent thread through the complainant’s evidence about what occurred, in that it never went beyond touching in the vaginal area.  If the complainant was fabricating a complaint for the reasons advanced by the defence, it would have been easy for her to escalate the seriousness of the touching.  Even the account when she said it occurred “inside” as opposed to outside is not so compelling that it overcomes other matters.  The jury would have been mindful that the variation occurred in the account given by F, not directly by the complainant, so it goes to the credibility of the complainant rather than establishing it as a fact.
109. The jury could have drawn comfort in the reliability of the complainant’s evidence from the preliminary complaint to both F and N.  With F it was prompted by a counselling session where the issue was not letting others touch one’s private parts.  With N, it was something similar, in that N made a comment about it being wrong to let others touch one’s private parts.  That may well be accepted by the jury as a likely prompt to reveal what had been hidden to that point.
110. The submission that it was improbable that the appellant would offend while the complainant was, to his knowledge, under counselling, could well have been rejected by the jury as unpersuasive.  They could use their own knowledge of the world to reason that people do not always behave rationally.
111. Having reviewed the whole of the evidence, and being careful not to substitute trial by an appeal court for trial by jury, I am unable to conclude that it was not open to the jury to accept the complainant’s evidence and therefore be satisfied beyond reasonable doubt of the appellant’s guilt.
112. This ground fails.
113. The appellant was convicted on 3 August 2016 and remanded in custody.  He was sentenced on 7 September 2016, to 12 months’ imprisonment suspended after having served five months.  The 35 days in pre-sentence custody was declared as time served.  On 8 November 2016 the appellant was granted appeal bail.  That means that by then he had served the 35 days pre-sentence custody and another two months.  That leaves an additional two months yet to be served under the sentence imposed on 7 September 2016.  As the sentence was not challenged and the appeal has failed, a warrant should issue for the appellant’s arrest and return to custody.

Disposition

114. For the reasons above I would dismiss the appeal.  I propose the following orders:
     1. The appeal is dismissed.
     2. Order that a warrant issue for the arrest of the appellant, to lie in the registry for seven days.