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CITE

Notable Unreported Decision
Appeal Determined (QCA)

R v Conn; ex parte Attorney-General[2017] QCA 220Sofronoff P and Fraser JA and North J
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R v Conn; ex parte Attorney-General[2017] QCA 220

SUPREME COURT OF QUEENSLAND

CITATION:	R v Conn; R v Conn; Ex parte Attorney-General (Qld) [2017] QCA 220
PARTIES:	In CA No 361 of 2016: R v CONN, Joel Robert (appellant) In CA No 369 of 2016: R v CONN, Joel Robert (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 361 of 2016 CA No 369 of 2016 DC No 84 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction Sentence Appeal by Attorney-General (Qld)
ORIGINATING COURT:	District Court at Townsville – Date of Conviction: 1 December 2016; Date of Sentence: 6 December 2016 (Durward SC DCJ)
DELIVERED ON:	29 September 2017
DELIVERED AT:	Brisbane
HEARING DATE:	31 May 2017
JUDGES:	Sofronoff P and Fraser JA and North J
ORDERS:	In CA No 361 of 2016: Appeal dismissed. In CA No 369 of 2016: Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the complainant was a 14 year old boy – where the appellant was an 18 year old man – where the complainant was a basketball referee and the appellant was his supervisor – where the appellant took the complainant to the appellant’s grandmother’s house and engaged in sexual activity with the complainant – where on a later occasion the appellant masturbated the complainant’s penis – where on a later occasion the appellant attempted to make the complainant sodomise him – where on a later occasion the appellant masturbated the complainant’s penis and had the complainant perform oral sex on him – where on a final occasion the appellant procured the complainant to engage in sexual activity with another boy aged 13 – where these incidents resulted in the appellant being charged with five counts of indecent treatment of a child under 16, three counts of permitting himself to be indecently dealt with by a child under 16, one count of attempting to permit a child under 18 to sodomise him and one count of procuring a child under 16 to commit an indecent act – where the appellant was convicted on the counts relating to the first incident and the final incident – where the appellant was acquitted on the counts relating to the other three incidents – where the complainant had only recalled the incidents a number of years after they occurred – where the prosecution submitted that the complainant may have confused the appellant for another sexual partner – whether it was open to the jury to accept recollected evidence – whether it was open to the jury to regard the complainant as credible when he had previously made inconsistent statements regarding a collateral issue – whether it was open to the jury to accept the complainant’s evidence in relation to the first and final incidents but not in relation to the other three incidents CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEALS BY CROWN – PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS – where the Attorney-General brings an appeal against sentence – where the Attorney-General submits that the sentencing judge made no express finding about exceptional circumstances to justify imposing anything other than a custodial sentence – whether the sentencing judge failed to give adequate reasons CRIMINAL LAW – APPEAL AND NEW TRIAL – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the sentencing judge imposed a non-custodial sentence – where there were a number of mitigating and aggravating factors – whether the non-custodial sentence imposed was manifestly inadequate on the basis that there were no exceptional circumstances Criminal Code 1899 (Qld), s 668E(1) Penalties and Sentences Act 1992 (Qld), s 9(4) Bromley v The Queen (1986) 161 CLR 315; [1986] HCA 49, applied Duniam v R [1997] TASSC 107, considered Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, applied GAX v The Queen (2017) 91 ALJR 698; [2017] HCA 25, cited Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44, cited Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56, considered Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v AG [2000] NSWCCA 86, considered R v BCX (2015) 255 A Crim R 456; [2015] QCA 188, approved R v J (No 2) [1998] 3 VR 602, considered R v LR [2006] 1 Qd R 435; [2005] QCA 368, applied R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, considered R v Pham [1996] QCA 3, distinguished R v Quick; Ex parte Attorney-General (Qld) (2006) 166 A Crim R 588; [2006] QCA 477, distinguished Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42, applied
COUNSEL:	M J Copley QC, with C J Grant, for the appellant in CA No 361 of 2016 and for the respondent in CA No 369 of 2016 M R Byrne QC for the respondent in CA No 361 of 2016 and for the appellant in CA No 369 of 2016
SOLICITORS:	Anderson Telford Lawyers for the appellant in CA No 361 of 2016 and for the respondent in CA No 369 of 2016 Director of Public Prosecutions (Queensland) for the respondent in CA No 361 of 2016 and for the appellant in CA No 369 of 2016

SOFRONOFF P: The appellant was charged with 11 counts of sexual offences. Counts 2, 6 and 7 charged him with unlawfully permitting himself to be indecently dealt with by the complainant, a child under 16 years of age. Count 11 charged him with having unlawfully and indecently procured the complainant, a child under the age of 16 years, to commit an indecent act. Count 9 charged him with having attempted to permit the complainant, a male person under the age of 18, to sodomise him. The remaining six counts charged him with having indecently dealt with the complainant, a child under 16 years. The appellant was convicted on counts 1, 2, 3, 4, 5, 6, 7 and 11; he was otherwise acquitted by the jury. The learned trial judge sentenced the appellant to terms of imprisonment ranging from three months to 15 months, all such terms to be served concurrently and all of them to be wholly suspended for an operational period of two years.
The appellant now appeals against his convictions and the Attorney-General has appealed against the sentences.
The complainant was born on 23 May 1988. In 1999 he began to play basketball and came to know the appellant, who was a referee. The complainant began to referee games himself and, by the age of 14, he had ceased playing games himself and was engaged in the sport solely as a referee. The appellant supervised referees such as the complainant and was responsible for allocating them to particular matches.
According to the complainant’s evidence, some months after he had turned 14, in the second half of 2002, the appellant told him that he knew that the complainant was gay and told him that he could confide in the appellant if he wanted to. In due course the complainant did begin to confide in the appellant and the appellant began asking him questions of a sexual nature. He asked him whether he had ever “hooked up with a guy”. The complainant told him that he was a virgin. According to the complainant’s evidence, the appellant asked him “if [the complainant] would ever hook up with him” and, upon the complainant’s saying he wouldn’t, the appellant then asked him “what it would take for [the complainant] to hook up with him”. The complainant said in evidence that he had come to regard the appellant as an “empathetic and compassionate” person in whom he could confide. He said that he felt that he could talk to the appellant and that “if anyone else found out that I was gay, he’d protect me”.
The complainant said that he had initially been repulsed and disgusted by the appellant’s sexual overtures to him. He said that “the idea repulsed me, but at the same time, it was exciting. I was – I was a 14 year old boy”.
Ultimately, the complainant agreed to meet the appellant at the carpark of a McDonald’s restaurant. The appellant promised that he would give him money and Vodka Cruisers to drink. It was agreed that they would then masturbate each other.
The complainant gave detailed evidence about this meeting. He said it was a Monday morning. In order to avoid his mother giving him a lift, he had told her that he would ride his bike to school. Instead, he rode his bike to McDonald’s where the appellant was waiting for him in his car. He recalled that it was a light blue or grey coloured sedan and was dirty inside. It was an old car. He recalled that this incident took place in the second half of 2002. He placed it in time by reference to its proximity to a trip he had taken to Magnetic Island for an end of year summer vacation with his friends. By that means he placed the time of the meeting as between September and October 2002. The complainant was then in Grade 9.
After leaving McDonald’s, the appellant drove the complainant to the appellant’s grandmother’s house. The complainant could not recall the suburb within which the house was located but was able (accurately) to place it in a particular area of Townsville. He described the house, its small metal gate at the front with a driveway, the stairs at the back which led to a door into the house and that that door led to a kitchen. He drew a map of the house which was tendered. There was no suggestion at the trial that the description of the house which he gave or that the map which he drew were in any way inaccurate.
The complainant said that they passed “through a kitchen and then into the first bedroom closest to the stairs”. They took off their respective clothes and lay on the bed and they “started to play with each other’s penises”. They began masturbating each other. The evidence went on:

“All right. After – what was – what happened after that, if anything?---After that, Joel wanted me to get on top of him, so I did and we started grinding our bodies up against each other.

Okay?---We were kissing.

What position was he in when that happened? What was the – describe the relative positions of both of your bodies?---Joel was laying on his back and I was laying on Joel’s stomach.

Okay. So he was laying on his back with his stomach upwards?---That’s correct.

And you were laying on his stomach?---That’s correct.

So your back was on his stomach, is that right?---No, my stomach was on his stomach.

Right?---Yep.

And you described that you were grinding against each other?---That’s correct.”

The evidence continued:

“All right. Now, you described to me that you were grinding against one another and you were kissing. What’s the next thing that you recall happening?---He – Joel penetrated my anus with his finger.

Okay. How do you know that he penetrated your anus?---Because it really hurt.

Okay. Now, when it hurt, was anything said?---I told him to stop because it hurt, yes, but that was the only thing that was said.

Okay. And did he stop?---He did.

Okay. And what’s the next thing that happened?---We both laid back down on the bed. We masturbated each other again for a little while.

And, again, you mean - - -?---We played – I masturbated Joel and Joel masturbated me.

Yep?---And then I gave Joel oral sex.

What do you mean by that?---I sucked his penis.

All right. And then what happened?---And then what happened, I climbed back on time [sic] of Joel and we grinded until we ejaculated.

Okay. Sorry, I’m just going to take it back a stage. When you described about oral sex, it may well be obvious, but please tell me which body part was where?---My mouth was over and up and down on his penis.

All right. Now, can I ask you to describe, please – you described Joel’s appearance in general and you then started to describe other aspects of him. Can you now please describe those other aspects. I stopped you before, but I’d like you to now describe those?---Sure. His penis is circumcised. It’s very small when it’s erect. His testicles are very small. At the time they were barely noticeable. It was almost like they had sunken into scrotum or tissue or – I’m not sure.

Why do you say that?---Because they were just nowhere to be seen. They were very small. Like, I could see that they were very small, but I think there was a layer of fat around that made it difficult. I – I – yeah.

How heavy do you estimate Mr Conn was at that particular time?---Very heavy. To give you a kilogram – what am I, 75 to 80. I’d have to say at least 140 to 150 kilograms.

Okay. Now – so you’ve described about his penis and his scrotum and so on. Can you describe any other parts of his body?---His back was incredibly hairy. I did not notice any tattoos or any piercings or anything like that. Considerably hairy all round actually, yes. Yep.

Any other physical aspects of his body that you recall at that time?---Not so much about his body. I do remember the taste of cigarette smoke on my breath.

On your breath?---On my breath, yes. I wasn’t smoking at that point, so it repulsed me.

So you remember that the taste of cigarette smoke on your breath, but you had not smoked?---Yes, so it was from when – he was smoking at the time when we first engaged, yes.

Okay. Now, tell – you described the series of sexual instances that happened. What happened after that?---At his grandmother’s house? We put our clothes on and Joel drove me to the Strands at about lunchtime, mid-morning that day and dropped me off.

Okay. And what did you have with you when you were dropped off?---I had the bike that I came with. I had a four pack of blue Vodka Cruisers. I had $20 as payment and he offered to give me more money if I wanted a taxi home, and I declined.

All right. What did you do for the rest of that day?---I basically spent the day on the Strand. I fortunately bumped into a girlfriend of mine that we all know from – from basketball as well. We went to different schools so I think her school year had already broken out. She was visiting with one of her cousins from out of town. We randomly bumped into each other. We sat on the swings in the park, drank the four Cruisers, walked up and down the Strand and then at about 2 o’clock or maybe a bit before 2 o’clock, that’s when I would have left the guys, because obviously I had to be home back in my school uniform before my mother came home.

And what happened when you got home?---The only thing that I can remember about getting home that day was three things: being relieved that it was over and I could stop freaking out; the second thing was that my anus was insanely sore; and the third thing was that I was just so lucky that I wasn’t going to get into any sort of trouble from my parents.”

Counts 1 to 7, which included four counts of indecent dealing and three counts of the appellant permitting himself to be indecently dealt with, arose from the incidents that occurred at the appellant’s grandmother’s house.
Count 8 concerned an incident which the complainant said had occurred in the referee’s room at the basketball courts at which the matches were played. The complainant was in a room used by referees for changing their clothes. He himself was changing into his referee’s uniform. He said:

“Joel wanted to come in. I said, “No, I’ve got to be on courts.” He came in anyway, and then he grabbed my penis and starting groping me. I had made it very, very well known that it was not something that I wanted to do, and he continued anyway.”

…

How did you make it well known that it was something you didn’t want to do?---Because I told him before he entered the room, I told him once he had entered the room, and once it was over I think he could tell by the look on my face that I wasn’t very impressed.

Okay. So you said that he grabbed your penis. How did he grab your penis?---He just got his hand and groped my penis area, and then once he had had a hold on it he was rubbing it until I became erect.

And what happened from there?---We were both standing up and we grinded against each other until climax.

Now, you say until climax. How do you know it was until climax?---Because I could see the wet mark in his pants.

All right. Now, you described it as grand final time or grand final day. How is it that you recall that that was the time of the day that it happened?---Because I remember absolutely freaking out because the blinds in the referee’s room were very old and you could see cracks through, and the main stadium court had stadium seating all around it from various degreeing levels that go up far higher than the window of the referee’s room so it was very easy for people at a higher angle to see in. I literally had to be on the stadium court within minutes to either accept an award or to referee a basketball game. I can’t remember which, but that’s what I was really freaking out about. I had to go onto that court with all those people not knowing if anyone’s just seen what had happened upstairs with the light on.

Okay. Now, what were you wearing at that time?---Sorry. What was I wearing? My referee uniform, so black pants and a black and white striped t-shirt that you would tuck in.

And what about Joel?---I can’t remember the shirt he was wearing, but I do remember he was wearing board shorts.

Why is it that you remember that and not the shirt?---Because I could see the semen coming through the board shorts and that triggered my thinking as to am I going to have a patch? Am I going to walk out in front of a thousand people with lights on and a patch? So yeah, that’s what got me thinking that.

Okay. Why did it bother you that people might know or might have seen you? Why did that matter?---Because I wasn’t out or people didn’t know that I had an interest in boys, first of all; secondly, I was ashamed for the way that I was feeling and I was ashamed for engaging in a way like that with an older man that I knew that I shouldn’t be.”

Count 9 concerned an incident that was alleged to have occurred in a public park. The complainant gave evidence as follows:

“One instance Joel was driving me home from basketball. We pulled into – we pulled off on the side of the road next to a park. I can’t remember which park it was. It was – it was late at night. It was dark. There wasn’t anybody around and we went into the park with the intention that I would anally have sex with him.

And did you?---No.

What happened?---Joel wanted me to give him anal intercourse with my penis, and we did not have any lubricant, so with him being too tight it didn’t happen.

Okay. Did you try?---Yes.

Okay. And how did you try? Sorry to ask?---He put himself up against the tree and I tried to insert my penis into his anus.

But you couldn’t?---That’s correct.

Okay. Can you remember where, roughly, this park was, or what sort of suburb or anything along those lines?---I can’t, I’m sorry.

You just remember that it was a park and it was dark?---That’s correct.

And you – sorry, you said that – can you remember any features of the park? I think you said that he – he put his hands up against something. Is that right?---Yeah. There was a – there was a large tree, but the large tree is the only thing I can recall because it was wide open space except for that tree and that’s why we went to that tree because it was the only shelter from a wide open park.

Okay. And when you say a large tree, how large is large?---Maybe a metre and a half – metre and a-half in diameter and shooting 30 metres in the air.”

Count 10 concerned an incident which was alleged to have occurred at the appellant’s parents’ unit. The complainant gave the following evidence:

“Okay. Now, you described to me, when I asked you before, there were a number of different occasions. The next one, you said, after that time, was your – was Joel’s parents [sic] house – his unit on the Strand. Can you tell me about that, please?---I skipped school for the day. I don’t know where his parents were – because it was his parents’ house, so I assumed that they were working. And we did what we normally did. We went into his bedroom and we played with each other’s penises and I gave him oral sex.

Okay. And, again, just so there can be no misunderstanding about this, what do you mean by that?---Sorry. I was masturbating Joel and Joel was masturbating me and my mouth was over his penis.

Okay. Can you recall the time of day or anything like that?---I can’t recall what day, but I know it was definitely around about mid-morning, so maybe between 11 and 1.

Okay. And you don’t know where his family were?---I have no idea where his family were.

And do you know what you were doing for the rest of that day?---No. I honestly can’t.

Okay. Now, can you describe to me where that apartment is?---The apartment is on the Strand. It’s directly facing the half-court basketball courts, the toilet block and the – I think it’s a surf lifesaving club. So they’re across the road, obviously – yes.

And can you describe the inside of the apartment, at all, for me?---Yes, I can. The inside of the apartment was small. There was a door entrance from the main balcony door. Even though it was on the ground floor, I think everyone had their little, sort of, space. The bedroom we went into, I believe, at the time, was Joel’s, and that was straight through the unit door, straight to the left and the bedroom down on the left. The outside of the – the unit, I’d say – ground floor unit, again, directly facing that half-court area with a basketball court.”

Count 11 concerned an incident at the basketball courts at which the appellant procured the complainant to engage in sexual acts with another boy aged 13. The complainant gave the following evidence:

“It was a Saturday afternoon at Townsville Basketball and Joel had come to see me privately and told me that he had made sure that at a particular time K and I would both have that hour free so that we weren’t refereeing games. It was also late in the afternoon. So there weren’t many people left around because most of the games had already finished and if they hadn’t they were – they were close to it. And it was a [sic] easy time for Joel to keep a lookout, I guess, because there weren’t going to be that many people coming and going.

Okay. So the time was picked?---The time was picked, yes.

And who picked the time?---Joel picked the time because Joel did the scheduling for all of our schedules.

So what does that mean? Why is that important?---He allocates referees to games.

So why did that matter?---Why did that matter? He had deliberately made sure that we were available together so that what he wanted to happen would happen.

Okay. And how do you know he wanted it to happen?---Because he had verbally had told me many times that not only did he want to have a threesome with K and myself, that he wanted myself and K to have sex.

Okay. So what happened?---K was already in the toilet waiting for me, so I would assume that Joel’s had the same conversation with K. We locked each other in the toilet and K and I masturbated each other and gave each other oral sex.

Okay. Do you know where Joel was?---Joel was standing on the balcony of the referee’s room keeping a lookout to make sure that no one came down the back of the balcony to catch us.

Okay. So just to be clear, first of all, how do you know that Joel was there?---Joel told me that he was going to be waiting to keep a lookout, and that’s why I felt so – well, I didn’t feel comfortable doing it, but I felt more at ease knowing that he was standing there looking out because I was petrified that we were going to get caught and in trouble, and Joel reassured me that he would be waiting there at the top of the stairs to make sure no one went down the other end of the balcony.”

The jury acquitted the appellant on the counts involving the incident in the referee room, the park and his parents’ unit. They convicted him on the remaining counts.
The appellant’s counsel’s cross-examination of the complainant concentrated upon three major issues. First, questions were put concerning the complainant’s mental state. He had consulted a psychologist between 2011 and 2014. He had also consulted his general practitioner for assistance in respect of panic attacks and anxiety. He received medication for this. It was put to him that he had had addiction problems with alcohol and had used marijuana regularly. He had used amphetamines and cocaine.
Second, it emerged that the complainant had not informed his psychologist or his general practitioner about his allegations of sexual abuse at the hands of the appellant until late in 2014. The complainant explained his omission to complain as follows:

“Were you perhaps asked whether you had any child abuse?--- I would have been, and the reason why was because this was years before I had remembered, because it was blacked out, and it was years before I had taken action.

So even in May of 2011, if you denied you had ever been abused sexually as a child, it was because you had no memory of it?---That is correct. Because of the trauma, it was blacked out.

Yes?---And even if I had remembered it, I wouldn’t have wanted to say to a random stranger, for no apparent reason, that I was abused. It’s not a very fun thing to have to go through.

So it popped back into your head in September 2014?---It came back to my head, yes. And any psychologist would tell you that that is very common with trauma.”

Third, a direct attack was made upon the complainant’s credit based upon inconsistencies in evidence he had given at the committal and in his police statement concerning his use of cocaine and amphetamines, his belief about the actual age of the appellant and his admission that another man, Paul, had also indecently dealt with him and that the complainant had withdrawn the complaint that he had made to police that Paul had raped him.
Otherwise, it was put to the complainant in a broad fashion that his allegations were fantasies that he had made up.
The appellant did not give evidence or call evidence. However, in his statement to the police, which was tendered, he admitted that his grandmother lived in the area generally described by the complainant and that, as the complainant had said, he was circumcised. He admitted knowing K, the boy with whom the complainant alleged he was induced to engage in sexual acts. He said that he had “heard lately” that K was gay. At the relevant time he and K used to go for drives together from time to time.

Appeal against conviction

The appellant has appealed on the ground that the guilty verdicts were unreasonable and cannot be supported having regard to the evidence. This ground resolved into two arguments. The first was that it was not open to the jury to regard the complainant as a truthful person. This proposition was supported by reference to four factors. First, it was submitted that the evidence of the alleged incidents was based upon a recollection that was said to have been recovered after it had been “blacked out”. Second, it was argued that it was possible that the complainant had confused the appellant with Paul, with whom the appellant had had a sexual relationship. Third, it was submitted that the complainant had admitted to previously lying to gain an advantage for himself and had been shown to have lied at the trial or the committal proceeding. Fourth, it was submitted that the allegation concerning the occurrence in the referee’s room, in respect of which the jury had acquitted, was inherently implausible by reason of the opportunity for spectators at the basketball courts to see into that room.
It can be said at once that the second, third and fourth factors were matters entirely for the jury to determine. It must be remembered that in approaching the task of determining whether a verdict is unreasonable or cannot be supported having regard to the evidence, an appellate 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.”^[1]

In M v The Queen^[2] the plurality emphasised the kind of case in which an appellate court might conclude that a reasonable jury ought to have entertained a doubt. Their Honours said:

“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.”^[3]

M v The Queen was a case in which the court split 4:3 in the application of the relevant test to the facts. The majority was moved to acquit by the following factors. The appellant had been convicted of indecently dealing with his 13 year old daughter and also with three counts of rape against her. However, the complainant had previously made false allegations of sexual assault against her eight year old sister and also that a male relative of a school mate had attacked her. Her complaint about the events in issue had been made late. Of the two doctors who had examined her, one found that the condition of the complainant’s hymen was inconsistent with rape and the other found that there was no evidence of physical penetration one way or the other. The plurality observed that not only was there no corroboration of the complainant’s evidence but she conducted herself with “apparent equanimity” at a family function attended by the appellant shortly after the alleged assaults. The plurality also took into account what they regarded as the “improbability of the appellant acting as he was alleged” in circumstances in which he might easily have been discovered. The appellant had given evidence at the trial and, according to their Honours, “does not appear to have been discredited in any way by cross-examination”. A number of witnesses with knowledge of the nature of the allegations against him gave character evidence in his favour. The prosecution case rested, therefore, upon the evidence of a witness who had made similar allegations that had been false and whose evidence was inconsistent in part with the physical evidence. The appellant had given evidence denying the allegations and his credit had not been evidently damaged and had been supported by witnesses.
Brennan J reviewed the same evidence but concluded that it revealed “no feature on which a court’s assessment should prevail over the assessment made by the jury”.^[4] His Honour observed that:

“Words in a printed transcript may tell one story to the critical legal mind and another to those who test a story for truth or falsehood according to a broad experience of life. Inconsistencies which loom large when painted with the colours of advocacy may be insignificant minutiae once a witness convinces a jury that he or she is honestly attempting to tell the truth. It is the sad but salutary experience of every counsel for the defence that the prosecution’s “weak point” is often brushed aside dismissively by a jury satisfied of the honesty of the prosecution witness.”^[5]

Gaudron J also differed from the view expressed by the plurality. Her Honour regarded the medical evidence as not inconsistent but merely inconclusive.^[6] She was able to conclude that the evidence of false complaints did not show the complainant to be liar. She referred to the special position of children when considering the absence of fresh complaint and adverted to the many reasons why children might be prone to remain silent despite having been sexually assaulted.^[7] Her Honour concluded:

“Leaving aside the question of penetration, the arguments for the appellant do not cast doubt on the case presented by the prosecution. Rather, an analysis of the evidence reveals a substantial case without significant weakness. That is important when it comes to evaluate the arguments made by reference to the defence case, particularly the argument based on the improbability of the accused having acted as alleged.”^[8]

Her Honour considered that the verdicts on the charges of sexual intercourse should nevertheless be set aside having regard to the inconclusiveness of the medical evidence but that, otherwise, there should be a new trial upon such lesser charges as were revealed by the evidence.
McHugh J concluded that there was no reason why the jury had to have a doubt about the guilt of the appellant. His Honour dealt with each of the matters referred to by the plurality and concluded, for reasons it is not necessary to discuss, that:

“…a reasonable jury was bound to consider the cumulative effect of all the matters on which [the appellant] relied. But even when that is done, I do not think that a reasonable jury must have had a reasonable doubt about M.’s guilt. The cumulative effect of the criticisms that [the appellant] made of the prosecution evidence cannot be lightly dismissed even though, as I think, there was a reasonable answer to each criticism. But, as Sully J. said in the Court of Criminal Appeal, “even when looked at in their totality” they were not “so destructive of the complainant’s credibility as to entail that any reasonable jury must either have rejected her outright, or have been left with an unresolved unreasonable doubt overall”. Not only did the jury have the great advantage of seeing K. and M. give evidence but the jury might also have thought that it was improbable that K.’s evidence was invented.”^[9]

In this case, the first of the appellant’s factors, the complainant’s subsequent recollection, was entirely a matter for the jury to assess. The days have long gone when evidence could be rejected out of hand because it was the product of delayed memory. While the actual detail of trauma upon victims of sexual abuse may remain the province of experts, scientific lay people have come to understand that such trauma can have an effect upon perception and recollection and that these are matters to be taken into account when assessing credibility. In particular, when a person did not, at the time of the events in question, perceive the defendant’s acts as abusive, there may be peculiar effects upon memory.^[10] The issue was one of fact that was entirely one for the jury to consider and to decide for itself.
In my view the theory that the complainant had confused the appellant with Paul was weak. This proposition appears to have been based upon whatever mental difficulties the complainant had suffered and upon the complainant’s evidence that he believed that the appellant was aged in his mid-twenties. Paul was aged in his mid-twenties but, in fact, the appellant was 18 at the time of the relevant events. The complainant had rejected the idea that he had confused his two assailants. His experience with the two men was completely different. He explained:

“I had feelings for Paul. That was different. I allowed Paul to do that because I had feelings for him. …

I did not have feelings for Joel. Joel took advantage of me and I was 14 years old. …”

The appellant has submitted that the complainant’s experiences with him and with Paul gave rise to a basis for a conclusion that the complainant was not “rational”. It is said that this can be inferred from his belief that both the appellant and Paul were of a similar age when in truth Paul was six or seven years older. There was no evidence at the trial about how each of these men appeared and whether the complainant’s mistake was or was not justified. There is nothing in this argument. It is also said that the complainant gave evidence that he believed that both the appellant and Paul had groomed him for sexual purposes in conjunction with each other. However, there was nothing irrational in this inference. He gave evidence that he ceased having sexual relations with the appellant at some time in the first half of 2003. He turned 15 on 23 May of that year. Later that year Paul began indecently dealing with him. Counsel for the appellant asked the question which provoked the complainant’s evidence about the implication he had drawn:

“Later that year, 2003, you’re sodomised by Paul?---That’s correct.

After a period of grooming or whatever by him?---What happened between Paul and I probably did happen in the same way. It’s awfully convenient that Paul and – and Joel were incredibly good friends. It’s awfully convenient that Paul came to me and said that I know you hooked up with Joel.

Did he?---So when you have these two friends that are basically inseparable, one sodomises a child, the other one gets on board.”

I see nothing irrational in the possible conclusion drawn by the complainant. The issue, being collateral, was not explored further; it does not reveal any basis upon which the complainant was rendered incredible so as to justify appellate interference.
Third, it was said that it can be concluded that the complainant was “not rational” because he had withdrawn his complaint about Paul while maintaining his complaint against the complainant. The complainant explained this difference in treatment as follows:

“And the reason why I couldn’t continue on with [the complaint against Paul] was because the pressure and everything that I have to go through to try and keep [the appellant] from abusing other children is too much to take on. I’m not Superman. I can’t do the world’s work.”

The issue was not pursued further in cross-examination. However, it is capable of being explained by the different ways in which he perceived the two men. He said:

“They’re very two [sic] different things and I’ll explain to you why. I had feelings for Paul. I was attracted to Paul. And that’s very different to being groomed by someone when you’re 14 and they’re confiding in you as a friend and they’re grooming you, offering you money, offering you alcohol, offering you cigarettes to try and get you into bed. I made a conscious choice at the age of 15 to engage with Paul because I had feelings, okay? Now, I wasn’t innocent when I – I was innocent when I slept with Paul, because the situation was completely different, okay? The situation with Joel and the situation with Paul are very different. I had feelings for Paul. I did not have feelings for Joel and I was groomed by Joel, and I was taken advantage of by Joel. And in terms of my inexperience, of course I was inexperienced.”

Whether or not the complainant’s evidence lacked credibility because he pursued his complaints against the appellant to trial while abandoning his complaints against Paul were matters entirely for the jury to consider in assessing his overall credibility. In my opinion this argument is incapable of justifying a conclusion, on its own or in combination with the other factors addressed in these reasons, that the jury must have acquitted.
Third, it is said that it was not open to the jury to regard the complainant as a truthful person because he had previously told lies. This submission related to the complainant’s inconsistent evidence about his use of cocaine. He had given evidence at trial that he had used cocaine on only one occasion when he was in New York. He expressly denied that he had ever used cocaine in Canada. However, at the committal proceedings he had acknowledged that he had used cocaine regularly and frequently while he was in Canada. At the trial, when confronted with this inconsistency, he maintained that his evidence at the committal was wrong and that he had been confused. It is not only legitimate, and useful, to test a witness’s credibility by means of an examination of discrepancies in the evidence that has previously been given or that is contained in previous statements. The distinctions in evidence given in relation to the substantive matters in issue and even evidence given upon collateral issues will sometimes be important. However, even discrepancies in evidence given upon matters directly in issue may not point to a lack of credibility. They may be explained in many ways and, indeed, the greater the detail demanded of a witness, the greater the chance of inconsistency in honest witnesses. Discrepancies upon collateral issues that go only to credit, such as whether cocaine was used in Canada or in New York, are inherently less likely to be prone to affect the credit of a witness. Nevertheless, sometimes that is all that counsel has and sometimes that can be enough.
However, the effect upon a witness’s credibility by the disclosure of discrepancies in evidence is entirely a matter for the jury. It would be a rare case in which a discrepancy or inconsistency in a witness’s evidence upon collateral matters would be capable of giving rise to a conclusion by an appellate court that those discrepancies are inconsistences which, in combination with other matters, give rise to a conclusion that a jury must have entertained a reasonable doubt. In this particular case, in which the complainant candidly admitted when asked that he had suffered severe psychological disturbances and had used a variety of drugs at different times, I find it impossible to conclude that the direct inconsistency concerning his cocaine use was anything other than a matter that the jury could weigh as it thought fit.
The fourth factor raised to support the proposition that the jury had been obliged to regard the complainant as untruthful concerned the implausibility of the events which the complainant alleged occurred in the referee’s room into which spectators were able to see. The jury had acquitted the appellant on this count. It was submitted that the jury’s rejection of the complainant’s evidence in this respect “should have led the jury to doubt his honesty and reliability generally”.
This argument overlaps with the appellant’s second broad argument to support his appeal, namely that the verdicts of guilty are inconsistent with the verdicts of acquittal.
It was submitted that the complainant’s evidence about the five incidents which made up all of the counts was of the same quality. It was submitted that there was no corroboration for any of the counts and that, as a consequence, since the prosecution case depended solely upon the complainant’s evidence, the jury’s rejection of his evidence in respect of counts 8, 9 and 10 should have resulted in an acquittal on all counts.
In considering an argument that the verdict of a jury is unreasonable or cannot be supported having regard to the evidence, it is necessary to bear in mind several established propositions.
First, although s 668E(1) of the Criminal Code does not contain restrictive language or state the criteria by reference to which the unreasonableness of a jury’s verdict can otherwise be determined, it has been held that there are two textual indications that serve to restrict these grounds. The first indication is that a jury’s verdict in serious criminal cases is “accepted, symbolically, as attracting to decisions concerning the liberty and reputation of accused persons a special authority and legitimacy and hence finality”.^[11] The setting aside of a jury’s verdict is, therefore, a serious step and implies a strictness of meaning in the words “unreasonable” and “[un]supported” which those words in isolation might not bear.^[12] The second textual indication is that the jurisdiction to set aside a verdict “[if] on any ground whatsoever there was a miscarriage of justice” implies that any unreasonableness or lack of evidentiary support must be of a kind that demonstrates a miscarriage of justice before it can justify interference with a verdict.^[13]
Second, it is not irrational for a jury to accept a witness’s evidence in relation to some events while holding a reasonable doubt in respect of other events sought to be proved by the same witness, particularly when that witness is the only witness to prove all issues.^[14] Juries are invariably directed to consider each count separately by reference to the evidence applicable to that count. They are commonly warned against using propensity reasoning by which an accused’s guilt on one count concludes the question of guilt on other counts. It is true, as Keane JA emphasised in R v LR,^[15] that a jury should consider whether a doubt about a complainant’s evidence in respect of one count affects his or her overall credibility and reliability in relation to other counts. However, consideration of a complainant’s credibility in that way may lead to different outcomes, as his Honour observed in the same case. A jury might find a complainant to be a credible witness generally and, if the complainant’s evidence is sufficient to convict, then a jury could find guilt beyond a reasonable doubt of each offence charged. Alternatively, although a witness might be regarded as generally credible, there may be features of the evidence on a particular count which could lead to a rejection of the evidence on that count only. A jury might conclude that a witness is credible but take the view that the evidence given in respect of a particular incident, while honest, was not sufficiently reliable to justify a guilty verdict.^[16] That juries engage seriously and carefully in accordance with separate consideration warnings is evident from the frequency with which juries acquit accused persons of some but not all counts charged even where there is a single complainant witness and when the offences are the same or similar.^[17]
Frequently, the argument that a miscarriage of justice has occurred and can be demonstrated by what is said to be an irreconcilable inconsistency of verdicts is raised in cases in which the sole evidence implicating an accused is the uncorroborated evidence of a complainant. There will often have been a delay in the making of any complaint. Commonly it can then be said that there is no apparent difference in the character or quality of the evidence given by a complainant to prove each of the counts. However, it cannot be maintained that these factors alone would justify a conclusion that there has been a miscarriage of justice in any case in which a jury has convicted on some counts and acquitted on others. That is so because the significance of features like these will also depend upon the facts of a particular case, the way the trial has been conducted by the prosecution and the defence and the content of the Judge’s directions to the jury.
In Jones v The Queen^[18] an appeal against conviction was upheld in a case in which a gymnasium instructor had been convicted of three acts of sexual intercourse with a child whom he had instructed. The first complaint was made more than four years after the first alleged act of intercourse. The incidents were said to have taken place when there was nobody present but the complainant and the appellant. The jury acquitted the appellant on one of the three counts and convicted him on the other two. His acquittal, it could be inferred, was based upon a reasonable doubt engendered by evidence that the appellant’s wife, son and daughter were invariably present during the week-night gymnastics training sessions, during one of which the offence was said to have been committed, and that they invariably travelled home with him afterwards. If that evidence were accepted, then there was no moment when the appellant could have been alone with the complainant. The other two counts occurred on weekend mornings when the appellant was usually accompanied during training and afterwards by an assistant. However, by reason of the lapse of time, the assistant could not give an absolute assurance that she had accompanied the appellant after work on every single occasion of training. This left open the possibility that an occasion could have arisen when the appellant was alone and could have committed the offences. However, the jury had not been given a Longman direction.^[19]
It was the absence of that direction, the acquittal on the second count, the delay in the prosecution and evidence of a friendly relationship between the complainant and the appellant and his family subsequent to the alleged events that led the Court to conclude that the convictions should be set aside.
It will be seen, therefore, that it was not merely the lack of corroboration, the delay and the lack of apparent difference in the quality of the complainant’s evidence which led to the decision.
In R v Markuleski,^[20] Spigelman CJ, in a comprehensive and detailed judgment, said that to demonstrate a miscarriage of justice it will not be enough to show, in a sexual assault case with multiple counts where there is a single complainant upon whom the Crown case relies, merely that the jury has acquitted on some counts and convicted on others. Nor will a miscarriage of justice be shown in such a case just because the Court cannot detect a relevant difference in the quality of the complainant’s evidence given on each charge.^[21]
Spigelman CJ said:

“Indeed, the courts’ respect for the constitutional role of the jury, affirmed in Jones itself, is such that a court of criminal appeal could conclude that subtle differences in the way evidence was presented – differences not apparent from the transcript available on appeal – may explain what appear to be, at first sight, inconsistent verdicts.”^[22]

Spigelman CJ examined in detail instances of cases in which verdicts of acquittal and guilt in multi-count trials have implied a partial rejection of a complainant’s evidence. The possible justification for differing verdicts are many and varied.^[23] They are all consistent with a jury’s compliance with a Judge’s direction to consider each count separately while taking into account its judgment about the complainant’s credibility in respect of one count when considering others. A good example of such a case is Duniam v R.^[24] The appellant had been charged with one count of attempted rape, 10 counts of rape and two counts of aggravated sexual assault. The first and second counts were alleged to have occurred on the same afternoon in a caravan on the appellant’s property. The other offences were alleged to have been committed at various places and on various dates afterwards. The jury found the appellant guilty of counts 1 and 2 and acquitted on all other counts. The appellant gave evidence and admitted that he had had sexual intercourse with the complainant at the time and place she alleged in count 2 but said that that had been with the complainant’s consent. With respect to count 1 the appellant admitted that he was present in the complainant’s caravan as she alleged but denied that any sexual act took place between them. With respect to counts 5, 6 and 11 the appellant admitted that he had had consensual sexual intercourse with the complainant at or about the place alleged but at different times. With respect to the remaining counts the appellant denied that he had had any sexual intercourse with the complainant. The evidence of both the appellant and the complainant with respect to counts 1 and 2 was much more detailed than the evidence that each of them had given in respect of the other counts.
It was argued on behalf of the appellant in that case that if the jury had a reasonable doubt about the issue of consent on counts 3 to 13 then it was an affront to logic and common sense for the jury not to have had the same doubts about that issue on counts 1 and 2. Underwood J rejected this argument on the basis that consent was not the only issue for the jury to determine. The jury had to determine whether there had been an act of sexual intercourse as particularised by the Crown. Because of the evidence adduced on the part of the appellant about the implausibility of intercourse taking place in the circumstances alleged by the complainant, the jury might not have been able to feel satisfied that the particular act charged had taken place. His Honour applied similar reasoning to the other instances of acquittal. His Honour concluded that this was a view open upon the basis that the jury had simply followed the Judge’s instruction to consider separately the case presented by the prosecution in respect of each count.
Wright J said that it would put an unacceptable gloss on verdicts to say that the complainant had not been accepted in respect of the counts on which there had been acquittals. It would be even less accurate to say that the jury had “rejected her evidence” in respect of the counts upon which they had acquitted. His Honour pointed out that it was possible that the jury had regarded the complainant’s evidence as preferable to that of the appellant or that they thought it was probable that she was telling the truth but that nonetheless the Crown had not discharged the heavy onus of proof upon it.
In R v AG^[25] the appellant was found guilty of three counts, acquitted on one count and the jury was unable to reach a verdict on two other counts. Two of the acquittals related to incidents which, to differing degrees, depended upon the existence of a toilet block which was proved not to have been in existence at the relevant time. This explained those acquittals. On the charge in respect of which the jury was unable to reach a verdict, there was evidence suggesting the presence of other persons at the time and place where the offence was said to have occurred. This was said to render the complainant’s description of events improbable.^[26] Consequently, Simpson J, with whom Spigelman CJ and Ireland J agreed, concluded that any doubt in the jury’s mind about the credibility of the complainant in respect of the acquittal and the verdict upon which the jury could not agree would not necessarily apply to the complainant’s credibility on the other counts.
Similarly, in R v J (No 2)^[27] the appellant had been charged with three counts of indecent assault against his daughter and 10 counts of incest, the offences having been committed over a period of 21 years when the complainant was aged between eight and 29. The jury convicted on three counts of indecent assault and four counts of incest but acquitted on the other six counts of incest. In a joint judgment, Winneke P and Charles JA concluded that the jury had accepted the complainant as a witness of truth when she said that she had been the subject of sexual abuse by the appellant. However, the verdicts demonstrated that the jury was prepared to give the appellant the benefit of the doubt when there was acceptable evidence from independent sources pointing to the possibility that the offence had not occurred at the time or in the circumstances particularised in the count.
In Markuleski, Spigelman CJ said:

“The reasoning in R v RAT,^[28] R v Barnett,^[29] R v Carbone,^[30] R v Dixon^[31] and R v S^[32] suggests that Jones^[33] established the proposition that in a pure word against word case a mixture of acquittals and convictions cannot be sustained unless the court can detect a relevant difference in the quality of the complainant’s evidence.

In my opinion this is not what the High Court intended. Whether or not the failure of the jury to accept the complainant’s version in one respect ought to have led to the jury to have a reasonable doubt with respect to other matters, must depend on the full range of relevant circumstances. The High Court held in Jones that on the facts of that case the acquittal necessarily undermined the credibility of the complainant’s evidence about other alleged incidents. By reason of the wide range of matters of fact and degree that must be considered in making a credibility finding, that conclusion does not, in my opinion, follow in every case unless the court is positively satisfied that there is some relevant difference in the quality of the complainant’s evidence.”^[34]

The correctness of Markuleski was raised for consideration in MFA v The Queen.^[35] The attack on that decision was rejected.^[36]
In this case the appellant did not give evidence and led no evidence. There was, therefore, no evidence to contradict the evidence of the complainant. The evidence given by the complainant in relation to the first occasion upon which the appellant indecently dealt with him was, perhaps for that reason, vivid and detailed. It began with a description of the appellant’s initial overtures to the complainant. The evidence has the ring of truth even in written form. The complainant described his own sexuality at the time as “possibly bi-sexual but most likely just confused”. He said he was “used to being judged by – by people, just by not being the most masculine person around in a sporting world, and also the fact that – I don’t know, I guess I hadn’t come to terms with it myself”. His recollection of the occasion itself was evidently clear. He recalled it was a Monday and that he had had to tell his mother that he would ride his bike to school to avoid getting a lift from her. He was able to put a specific time period within which the offences were committed by reference to a holiday trip to Magnetic Island. He was able to recall the approximate location of the house to which he had been driven and how its interior looked and smelled. He recounted details of the ensuing sexual interaction. He described the appellant’s sexual organs which were, in certain respects, distinctive. No contradictory evidence was led. He could recall that the appellant had a very hairy back and that his breath smelt of cigarette smoke and that the result of their kissing was that he had the taste of cigarette smoke in his own mouth. His concluding words about this event carried the spontaneity of truth:

“… and the third thing was that I was just so lucky that I wasn’t going to get into any sort of trouble from my parents.

… I was raised a Catholic. My parents have very high morals. My family are very good people, and something like that would’ve absolutely destroyed my parents.

… Knowing that I was having sex with a man when I was a boy.”

In a similar way the complainant described the occasion upon which the appellant had procured him to engage in sexual acts with K. This began with his description of a specific conversation he had with the appellant in which the appellant informed him that K, a boy known to the complainant, was also gay. The complainant described a particular Saturday afternoon at Townsville Basketball on which the appellant informed him that he had arranged the roster of referees to ensure that the three of them could be alone for an hour together. He described in specific terms the appellant’s ability to make “sure that we were available together so that what he wanted to happen would happen”. On that occasion the appellant arranged for the complainant and K to engage in sexual acts with each other behind the locked door of a toilet while the appellant kept watch from a suitable place. Verisimilitude was given to the complainant’s account by his description of his feelings at the time:

“… I didn’t feel comfortable doing it, but I felt more at ease knowing that he was standing there looking out because I was petrified that we were going to get caught and in trouble …”

He was able to say of the position from which the appellant kept watch that he was:

“…where it gave him eyes to see if people were coming from all sorts of directions. If he was near where I was there’d be no way that he’d be able to keep lookout.”

In respect of the offence which the complainant said had been committed at the appellant’s parents’ unit on The Strand, defence counsel elicited an admission that many people who were involved with basketball knew where the appellant lived at The Strand. The same questions were not asked about the appellant’s grandmother’s house.
The complainant’s evidence about that incident was brief; it has been set out earlier in these reasons. The complainant gave no explanation for how he came to be at that unit or how he came to know where it was. He was unable to recall when the offence occurred or on what day of the week. The detail of the events leading up to this meeting and its sequelae were not given.
The complainant had also given evidence in chief that the appellant had engaged in many sexual acts with him. He said:

“There were many. Joel used to drive me home from basketball at night and we would stop at any random place on the side of the road or somewhere where we would engage sexually and the same thing would be again, so it would be me masturbating his penis, his – him masturbating mine and me giving him oral sex.”

It was shortly after giving this evidence that the complainant gave evidence about the incident in the park which constituted count 9. That evidence has been set out earlier. The complainant could not remember where the park was or in what kind of suburb it was located. He gave no detail that could place the event at any point of time. His evidence was as general as his earlier evidence of uncharged acts.
The complainant’s evidence about the events in the referee’s room was much more detailed. However, like his evidence in relation to the offence at the park it involved sexual conduct in a place where, on the complainant’s own evidence, the appellant’s actions may have been visible to members of the public.
The matters which, to my mind, distinguish the counts upon which the appellant was convicted from the counts upon which he was acquitted are these.
First, the evidence in relation to counts 1 to 7 was given in reasonable detail and concerned a specific occasion that was particularly memorable, if only because it was the first occasion upon which the complainant had engaged in sexual acts with the appellant and it was the occasion upon which he lost his virginity. His description of these events was supported by his ability to describe the appellant’s genitals and his description of the location of the offence, a matter that was not challenged and which it was not suggested could have been gained from other sources. His recollection of particular smells and particular feelings were capable of giving great credence to his account. Had the appellant been acquitted on this count it is difficult to see how he could have been convicted upon any of the other counts.
The complainant’s description of the events constituting count 11, the incident with K, was similarly detailed. He was able to relate the circumstances under which the appellant had made plans for the offence to be committed as well as recollections of his feelings at the time. He was able to explain in a way that the jury might have regarded as very credible the complainant’s role in standing lookout at a particular place in the building.
There are two additional features of these two sets of offences which make them stand out. Each of them involved an occasion upon which the appellant took the initiative in procuring the complainant to perform sexual acts of a kind in which he had never before engaged. The first set of offences, committed at the appellant’s grandmother’s house, involved the appellant procuring the complainant to engage in sexual activity for the first time in his life and with a man. The incident with K involved the appellant procuring the complainant to engage in a sexual act for the first time with a person other than the appellant. In each of these cases it was the appellant who had contrived and persuaded the complainant to engage in acts in which he would otherwise not have engaged.
In addition, the jury might have concluded that the evidence given in relation to the referee’s room and the park raised the question whether they was able to be satisfied beyond a reasonable doubt that the appellant, who had otherwise engaged in sexual acts with the complainant in private, would have taken the risk of discovery. In relation to the occasion in the appellant’s parents’ unit, this depended entirely upon accepting the brief and general evidence given by the complainant about what had happened in a place that he could well have known as the appellant’s parents’ residence.
Having regard to these matters, I am unable to accept that the different verdicts returned by the jury in this case represent “an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty”.^[37] It must constantly be borne in mind, when considering such a ground of appeal, that it is not for the Crown to justify or to rationalise verdicts of conviction and acquittal. Differing verdicts are inherent in trials of multiple counts, particularly when a jury is warned against propensity reasoning. It is for an appellant to demonstrate a miscarriage of justice by showing, by reference to the facts, the evidence, the witnesses and the conduct of the trial, that the differing verdicts are actually irrational or repugnant to each other and not merely that they might be. There was strong evidence which, on the face of the transcript, was clearly and cogently given which supported the convictions. I am unable to conclude that the acceptance of that evidence by the jury as establishing the guilt of the appellant was rendered repugnant to the acquittals or rendered illogical thereby. In my opinion the verdicts cannot be said to be unreasonable and there is ample evidence to support them.
I have also considered whether the appellant’s criticisms of the complainant’s credit in combination with a consideration of the differing verdicts give rise to a conclusion that there has been a miscarriage of justice. In my view they do not. It was a matter for the jury to determine the significance for the complainant’s credit of his evidence about how he came to recall the commission of these offences and the significance of his denials of use of cocaine in Canada and the other inconsistencies. None of these are, in my view, capable of giving rise in the circumstances of this case to a conclusion that the jury could not have accepted the complainant’s evidence. It was, however, open to them to accept his evidence in respect of the two sets of offences upon which they decided to convict the appellant while, for the reasons that I have endeavoured to explain, declining to be satisfied beyond a reasonable doubt in respect of the other counts.
In relation to the argument concerning the manner in which the complainant claimed to recall the offences committed, the starting point is that there is no rule that a person suffering from some form of mental disorder or whose mental processes involve an asserted blacking out of events and a subsequent recovery of them cannot be accepted as a witness of truth by a jury.^[38] Indeed, there is no rule that evidence given by witness even of that character cannot be accepted unless it is corroborated.^[39] Of course, if a witness, particularly one upon whom the case wholly depends, falls into that category then “common sense clearly dictates that the jury should be given a warning, appropriate to the circumstances of the case, of the possible danger of basing a conviction on the testimony of that witness unless it is confirmed by other evidence”.^[40]
In this case no complaint is made about the directions given by the learned trial judge. His Honour gave a Longman direction. In addition, he referred specifically to the way in which the complainant said he came to recall the events about which he gave evidence at a time after he had “blacked everything out”. His Honour read the particular passages of evidence by the complainant in respect of this matter. In due course, his Honour warned the jury in these terms:

“So I warn you that it would be dangerous to convict upon the complainant’s testimony alone, unless, after scrutinising it with great care, considering the circumstances relevant to its evaluation and paying heed to this warning, you are satisfied beyond reasonable doubt of the complainant’s evidence as being true and accurate.”

His Honour then immediately directed the jury that there were particular reasons why the complainant’s evidence had to be treated “with care” and because there were “aspects of his evidence that you should scrutinise carefully”. After referring to delay, his Honour then referred specifically in that connection to:

“… the difference between the accounts that the complainant has given concerning his psychological, social and health condition over time, the non-disclosure of conduct alleged specifically against the defendant to various others, including his psychologist, Ms Stacey Smith; the similar complaint to police about Paul, which was subsequently withdrawn; the spontaneous flood of memory of the complainant of the alleged conduct of the defendant that occurred without any trigger, suggestion or special causative event; the detail, in minutiae, that the complainant now says he recalls of things he had forgotten because he’d blocked them out of his mind for several years; the alcohol and drug consumption over time by the complainant and his associated mental and emotional status …”

After recounting several other matters that the jury ought to take into account in assessing the complainant’s credibility, his Honour then re-emphasised that:

“You should only act on the complainant’s evidence if and only if, after scrutinising it carefully, in the context of the matters I have just referred to and the other evidence, including his disclosures to Dr Hammond and later in the context of the defendant’s interview with the police, you are convinced of the truth, accuracy and reliability of the complainant’s evidence.”

The complainant was extensively cross-examined about his evidence of recollection. This was, therefore, a classic case in which it was for the jury to assess the reliability of the evidence. In Whitehorn v The Queen^[41] Dawson J said:

“In particular, a court of appeal does not usually have the opportunity to assess the worth of a witness's evidence by seeing and hearing that evidence given. Moreover, the jury performs its function within the atmosphere of the particular trial which it may not be possible to reproduce upon appeal. These considerations point to important differences between the functions of a jury and those of a court of appeal. A jury is able, and is required, to evaluate the evidence in a manner in which a court of appeal cannot.”

In a case in which there is no complaint about the adequacy of the direction given to the jury about the possible danger of basing a conviction on the testimony of a witness whose mental state is in issue and in which the direction was, in my respectful opinion, adequate, the submission that it was not open to the jury to act upon that evidence is unsustainable.
For these reasons I would dismiss the appellant’s appeal against conviction.

Appeal against sentence

The Attorney-General has appealed against the sentences imposed by the learned trial judge. Those sentences were as follows:

“Count 1: That on a date unknown between the twenty-third day of May 2002 and the first day of May 2003 at Townsville in the State of Queensland, Joel Robert Conn unlawfully and indecently dealt with [the complainant], a child under 16 years.