R v APP[2021] QCA 162

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  As at 24 August 2019 the complainant (COM) and the appellant (APP) knew each other.  Their respective mothers were friends, and APP had been asked to babysit COM on occasion.
2. [2]
   COM (aged 8 years and 4 months) and her younger sister (SIS) were at the house where APP lived.  APP was then aged 16 years.  APP’s older brother (BRO) was there as well.
3. [3]
   COM and SIS were going to stay the night there as the mothers were going out.  COM had brought a carry bag with pyjamas for herself and SIS.  At about 6 pm COM and SIS had a shower together and they changed into their pyjamas in the bathroom.  In COM’s case that consisted of fresh underwear with a nightie.
4. [4]
   The children then spent time in the lounge room with APP, and possibly BRO, watching television.  The mothers then left.
5. [5]
   At some point APP went outside to have a smoke.  COM went too because she was scared; BRO had told her a story about the house being haunted.  It was cold so she borrowed APP’s jumper and put it on.
6. [6]
   COM was in the lounge room watching a movie on APP’s phone when the battery went flat.  APP suggested that he and COM move to BRO’s room where there was a charger.  SIS and BRO remained in the lounge, where they eventually fell asleep.
7. [7]
   APP and COM went into BRO’s room.  APP was wearing a jacket, long pants and socks.  COM had her nightie on under the jumper she was wearing.
8. [8]
   APP and COM lay down in BRO’s bed, which consisted of a mattress on the floor.  COM watched a movie on the phone.  Eventually APP took the phone and switched it off.
9. [9]
   At some point COM tried to pull the jumper over her knees, but APP said not to do that as it would stretch the jumper.  He said to take the jumper off, and she did so.
10. [10]
    They each slept in that bed that night.  BRO and SIS were asleep in the lounge room.
11. [11]
    COM said that while they were in the bed APP touched her a number of times with his hand and fingers.  She said that there was skin on skin contact inside her underwear and on and in her vagina, and on her bottom.
12. [12]
    COM complained to her mother the next morning, and they went to the police the same day.
13. [13]
    Arising out of that complaint, APP was charged with two counts of indecent treatment of a child under 16, and under 12.  After a judge-alone trial he was convicted on both counts.  He appeals those convictions on three grounds:

    1. (a)
       the learned trial judge erred by not directing himself in accordance with section 21AW(2) of the Evidence Act 1977 (Qld);
    2. (b)
       there was a miscarriage of justice because the learned trial judge erred by placing too much weight upon the DNA evidence and disregarded the alternate hypothesis of “DNA transference”; and
    3. (c)
       the verdicts were unreasonable and cannot be supported having regard to the whole of the evidence.
14. [14]
    Only the first two of those grounds were the subject of oral submissions on the hearing before this court.

The evidence at the trial

15. [15]
    The evidence at the trial as to the events came principally from COM.  Her mother also gave evidence that was in the preliminary complaint category.  In addition, there was evidence from a DNA expert, Ms Adamson.
16. [16]
    The facts set out in paragraphs [1] to [10] above were unchallenged.  What took place in the bed was disputed.

Evidence of COM

17. [17]
    COM gave evidence by way of a recorded police interview admitted under s 93A of the Evidence Act, and pre-recorded oral evidence admitted under s 21AK of that Act.
18. [18]
    The essential parts of that evidence in so far as it concerned the alleged offences were as follows:

    1. (a)
       she was there to speak to police because APP had “Touched me in rude places”;^[1] she explained that to mean he “started touching me in my vagina”;^[2]
    2. (b)
       COM was in the lounge room first;^[3]
    3. (c)
       she had taken a nightie and underwear with her as they were to sleep over; her clothes (and those of SIS) were in a bag;^[4]
    4. (d)
       she had a shower with SIS and they changed in the bathroom;^[5] her mother was still there at that time;^[6]
    5. (e)
       she was wearing an Elsa nightie^[7] and underwear;^[8]
    6. (f)
       she was watching a Barbie movie on APP’s phone;^[9]
    7. (g)
       when they were in the lounge room APP went outside for a smoke, and she went too because she was scared by BRO’s story of the house being haunted; because she was cold APP gave her his jumper; later he said to take it off as she would stretch it;^[10]
    8. (h)
       APP was wearing long pants, socks and a jacket;^[11]
    9. (i)
       the phone went flat so they moved to BRO’s room where there was a charger;^[12]
    10. (j)
        they were in BRO’s bed^[13] which was a mattress on the floor;^[14]
    11. (k)
        COM watched a Barbie movie on Netflix on the phone on BRO’s bed;^[15]
    12. (l)
        the appellant was “hugging” her;^[16]
    13. (m)
        APP was snuggling close and touching her bum, inside her underwear;^[17]
    14. (n)
        APP put his hand over her waist and was “squishing” her bum;^[18]
    15. (o)
        then APP stopped squishing her bum and put his hand inside her underwear;^[19]
    16. (p)
        he touched her on her skin;^[20] she described it as: “he … touched me in my vagina. And then he touched me in my bum”;^[21] he “squished my vagina as well”, which felt “ticklish” and “weird”;^[22] she later described it as touching with his fingers and that he was “touching it, but being soft with it”;^[23]
    17. (q)
        she was “really scared” and “like frozen”;^[24] she pretended to be asleep;^[25]
    18. (r)
        she went to the toilet;^[26] APP “put his hand away really fast”;^[27]
    19. (s)
        she then got back into the same bed,^[28] because she thought if she did not get back into that bed APP “would get mad at me and realise”;^[29] he continued “touching me in my vagina ... And … in my bum as well”;^[30]
    20. (t)
        she went to the toilet a second time;^[31] at that time she had his jumper on;^[32]
    21. (u)
        she tried to wake BRO up but could not; she went back to bed and pulled the sheet or blanket over her;^[33]
    22. (v)
        she tried to put his jumper over her; she “got ... it at the end and tried to put it over me”;^[34] she “grabbed the end and pulled it, because it was big … I pulled it all over me … And was … in a ball”;^[35]  she tried to put it over her legs to prevent being touched; APP said not to do that because it would stretch the jumper,^[36] so she took it off;^[37] and
    23. (w)
        she told her mother in the morning when they were in the car going home; she said she had been touched by APP in the bum and vagina.^[38]
19. [19]
    In cross-examination COM affirmed the truth of what she had said in the interview.  She reiterated that she had been touched both times on the vagina, skin on skin, by APP’s fingers.^[39]
20. [20]
    Several additional points emerged:

    1. (a)
       her mother was there until about 7 pm when COM was about to go to bed;^[40]
    2. (b)
       she fell asleep in the lounge and felt APP touching her “in the vagina”;^[41] that was when the phone went flat and they moved rooms;^[42]
    3. (c)
       she explained the sequence: SIS and BRO went to sleep in the lounge room; so did she but woke up; she needed to watch a movie because it was dark and she was scared; she did that but the phone went flat;^[43]
    4. (d)
       she called her mother while she was in BRO’s room, but could not say anything about what APP was doing because he was there and would get angry;^[44] and
    5. (e)
       she described APP as mean, by which she meant that he “swears at everyone … gets into fights … kicks holes in the walls … punched a new hole in the wall … he’s disrespectful to people … and he’s just very mean and … rude”; she said she hated him.^[45]
21. [21]
    It was put to COM that she had made up the story to get attention or because she did not like APP, and that he never touched her on the vagina.  She responded in this way:^[46]

“MR KENNEDY: … did you … make up that [APP] had touched you to get attention from your mother and father?---Definitely not.

Okay?---No.

And did you make this up to get [APP] into trouble, because you don’t like him?---No. Definitely not, no. He was like [a] brother to me … until he did that to me.

Did somebody else tell you to make this up?--- No. No. No way. I swear, no-one – no.

But [COM], in fairness, I’m putting it to you that [APP] never touched you on the vagina?---Well, then, you’re wrong. … You’re wrong. You’re very wrong. … You’re wrong. … You’re not right.

MR KENNEDY: Okay?---And I would never ever lie, because I knew I would get into very big trouble. And I knew I would get in, like, extremely big trouble, so I would never lie like this as – this has happened to me. But, obviously, you’re on [APP’s] side, so, obviously, you’re not going to believe me.”

22. [22]
    As can be seen from the passage quoted above, one significant aspect of the cross-examination was that it was specifically put to COM that APP never touched her vagina, but it was not specifically put to her that APP had never touched her bottom.  However, it was put that she made up the story.

Evidence of COM’s mother

23. [23]
    COM’s mother gave evidence as to what occurred on the morning after COM said she was touched by APP.  COM spoke to her in the car on the way home, and the mother recorded part of it.  The recording was played and became Exhibit 2.  The transcript was marked for identification, MFI #E.  It recorded COM saying the following salient factors:^[47]

    1. (a)
       COM was in BRO’s bed because the phone needed charging;
    2. (b)
       she fell asleep and APP “kept touching me in bum and my vagina”; the touching was “inside” her vagina;
    3. (c)
       she was really scared and “frozen”;
    4. (d)
       she went to the toilet wondering what to do, then went back and APP kept on doing it;
    5. (e)
       she had his jacket on and tried to pull it over herself so he could not touch her;
    6. (f)
       APP touched her on top of her underwear and inside;
    7. (g)
       she was telling the truth, and: “You don’t think I’m crying for no real reason. I don’t wanna say this, but it’s like he’s raping me”; and
    8. (h)
       it was like he was inside her.
24. [24]
    In cross-examination the mother did not remember APP setting out the clothes for COM or SIS.^[48]  She said that when she left for a drive COM and SIS were in the lounge room.^[49]  She had a call from COM, asking for her to come home.^[50]

Evidence of complaint to the first police officer

25. [25]
    On 25 August 2019, prior to the s 93A police interview, COM spoke with another police officer.  The recording and transcript went into evidence.^[51]
26. [26]
    In that interview COM said: she and APP went into BRO’s room to use the phone charger; she went to sleep and APP touched her “in my vagina”; he was “squeezing my bum”; he only put his fingers into her vagina; APP put his penis on her leg; she went to the toilet wondering what to do; and she went back into the bed because she thought APP would question her if she did not do so.

Evidence of the DNA expert, Ms Adamson

27. [27]
    Relevant to the DNA evidence were several formal admissions made pursuant to s 644 of the Criminal Code 1899 (Qld):^[52]

    1. (a)
       On 25 August 2019 police seized the underwear and pyjamas COM wore to bed on 24 August 2019 for forensic analysis.  The pyjamas were not suitable for meaningful interpretation.  The underpants were.
    2. (b)
       On 6 October 2019 APP provided a sample of DNA by way of mouth swab to police.
    3. (c)
       Forensic analysis confirmed the mixed DNA profile obtained on COM’s underwear is greater than 100 billion times more likely to have occurred if APP had contributed DNA with COM, rather than if he had not.
28. [28]
    In her evidence in chief Ms Adamson was referred to “report number 622 to 764” which dealt with non-contentious matters.^[53]  From the way in which the formal admissions were read out by the prosecutor it can be inferred that the DNA results were in a report that had numbers assigned to samples and their results, and it was that report to which the prosecutor referred.  Thus, the prosecutor said, without objection: “The pyjamas that were marked P1900355629 of that report were not suitable for meaningful interpretation.  The underpants, which were item P1900355625, were”.^[54]
29. [29]
    Ms Adamson explained the essentials of DNA comparison, and said:^[55]

    1. (a)
       samples had been taken from COM’s underwear and nightie;^[56]
    2. (b)
       the tape lift from COM’s nightie was too complex in nature, and therefore, it was not suitable for a meaningful comparison;
    3. (c)
       as to the underwear, there was a meaningful comparison, namely: it was estimated that the mixed DNA profile obtained was greater than 100 billion times more likely to have occurred if APP had contributed DNA along with COM rather than if he had not;
    4. (d)
       explaining that: the likelihood ratio was greater than 100 billion in favouring contribution of APP; that was the highest degree of probability that the reporting process used;
    5. (e)
       DNA could be transferred; for example, directly by spitting, coughing or touching, and indirectly by contact with an item that had DNA on it, and then touching another item; she was asked if transfer to the underwear could have occurred if the underwear was placed on a bed where someone had left a sample, or if the underwear had brushed against a toilet on which a DNA sample had been left; she said it was “a possibility, but it would depend on how much DNA was initially there in the first place, the nature of contact that that garment would have had with the bed itself and that DNA”;^[57] and
    6. (f)
       police had taken the samples and Ms Adamson could not say if they were from inside or outside the underwear; however, the description on the sample was: “tape lift – inside and outside blue material underpants”.^[58]

Ground 1 – misdirection on s 21AW

30. [30]
    There was no dispute that COM’s interview and pre-recorded oral evidence attracted the provisions of s 21AW of the Evidence Act.  There was also no dispute that the learned trial judge did not give himself a direction under s 21AW(2).
31. [31]
    Mr Wilson and Mr Webber of Counsel, commendably appearing on a pro bono basis for the appellant, contended that in a judge only trial, the judge must apply, so far as practicable, the same principles of law and procedure as would be applied in a trial before a jury.^[59]  Further, if an act or the common law requires a warning or instruction to be given to the jury or prohibits a warning being given to the jury, the judge must take into account the requirement or prohibition if the circumstances arise in the course of the trial.^[60]
32. [32]
    It was contended that the absence of the direction could not be cured by any other form of words, and the trial was therefore an irregular trial.^[61]
33. [33]
    Further, being an irregular trial, it could only be saved if the proviso in s 668E(1A) of the Criminal Code could be applied.  They contended that this was not an appropriate case to do so.
34. [34]
    That contention was advanced even though it was frankly conceded that it was highly unlikely that the learned trial judge would have succumbed to the sort of errors that underlay why s 21AW required a jury to be given the strict warning, and in the terms of the section.
35. [35]
    The respondent accepted that the absence of the s 21AW direction meant the trial was irregular, but contended that this was a clear case for the application of the proviso.  It was contended that application of the proviso is a task to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence.  The appellant court must make its own independent assessment of the evidence and determine whether, making due allowance for the “natural limitations” that exist in the case of an appellate court proceeding wholly or substantially on the record, the appellant was proved beyond reasonable doubt to be guilty of the offences.^[62]
36. [36]
    It was contended that this case did not suffer from a lack of corroboration of the complainant’s evidence, that being a singular reason for refusing to apply the proviso.^[63]  In fact, it was said, there was powerful corroboration from the DNA evidence, and the preliminary complaint evidence supported the acceptance of the credibility and reliability of the complainant’s evidence.  Therefore, this was an appropriate case to do so.^[64]

Consideration

37. [37]
    Section 21AW of the Evidence Act provides as follows:

“21AW Instructions to be given to jury

1. (1)
   This section applies to a proceeding on indictment if any of the following measures is taken—

1. (a)
   an affected child's evidence is taken in a way provided for under subdivision 3 or 4;

2. (b)
   a person is excluded under section 21AU while an affected child gives evidence or the evidence of an affected child is presented;

(c) an affected child has a support person under section 21AV while the child gives evidence.

2. (2)
   The judicial officer presiding at the proceeding must instruct the jury that—

1. (a)
   the measure is a routine practice of the court and that they should not draw any inference as to the defendant's guilt from it; and

2. (b)
   the probative value of the evidence is not increased or decreased because of the measure; and

3. (c)
   the evidence is not to be given any greater or lesser weight because of the measure.”

38. [38]
    A judge only trial is governed by s 615B of the Criminal Code which relevantly provides:

“615B LAW AND PROCEDURE TO BE APPLIED

1. (1)
   In a trial by a judge sitting without a jury, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury.

2. (2)
   In a trial by a judge sitting without a jury, the judge may view a place or thing.

3. (3)
   If an Act or the common law—

1. (a)
   requires information or a warning or instruction to be given to the jury in particular circumstances; or

2. (b)
   prohibits a warning from being given to a jury in particular circumstances;

the judge in a trial by a judge sitting without a jury must take the requirement or prohibition into account if the circumstances arise in the course of the trial.”

39. [39]
    Section 615B(3) is an analogue of s 33(3) of the Criminal Procedure Act 1986 (NSW) considered in Fleming v The Queen.^[65]  That section provided:

“33 Verdict of single Judge

1. (1)
   A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.

2. (2)
   A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

3. (3)
   If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.”

40. [40]
    Fleming was a judge-alone trial in a sexual assault charge, where the case depended upon the evidence of the complainant.  Had it been a jury trial, the judge would have been required to give a Longman warning^[66] to the jury.  In his reasons for judgment the trial judge failed to make any reference to the warning which was required to be given to the jury and it was contended that this demonstrated a breach of s 33(3).  The High Court held that the failure to refer to the necessary warning was an error of law amounting to a miscarriage of justice, warranting a retrial.
41. [41]
    The High Court enumerated a number of matters of construction in relation to s 33.  One was expressed thus:^[67]

“Fourthly, whilst they are differently framed, the requirements of s 33(2) and (3) are expressed in terms of legal imperatives and a failure to observe either or both of them is to make a wrong decision on a question of law within the second limb of s 6(1) of the Criminal Appeal Act. Such failure may also mean that justice has miscarried, within the meaning of the third limb, because justice according to law, to which the accused was entitled, included compliance with the mandatory requirements of s 33.”

42. [42]
    Then dealing specifically with s 33(3) the High Court said:^[68]

“Finally, there may be a breach of s 33(3) with respect to the requirement to take a warning into account. The present appeal is put as such a case. Section 33(3) is framed in a fashion which differs from that of s 33(2) and which emphasises the particular importance attached by the legislature to the requirements of the law with respect to warnings. Section 33(2) requires the inclusion of principles of law applied and of factual findings relied upon, whilst s 33(3) obliges the judge to take the particular warning into account.

The obligation imposed by s 33(3) “to take the warning into account” is not only to be discharged but also to be seen to be discharged. The means by which the obligation may be discharged is that indicated in s 33(2), namely the inclusion in the reasons for judgment of the particular requirement for a warning among the principles of law applied by the judge. The various requirements that warnings be given have been expressed as rules of law or practice. The failure to give such a warning does not always lead to the setting aside of a conviction. But that does not mean that it is not a principle of law within the terms of s 33(2). The judge is obliged by s 33(3) to take the warning into account and in doing so the judge applies a principle of law.

The result is to require the recording and heeding of a warning, if one is called for in the particular case, and the giving of effect to it in a real sense by stating reasons why, notwithstanding the warning or as a consequence of it, a particular verdict is reached. A mere recording or statement of it, without more, would amount to an empty incantation. If these criteria are not satisfied in a particular case, then the judge is to be taken as not discharging the obligation imposed by s 33(3) that the warning be taken into account.”

43. [43]
    The requirement to give a jury a direction under s 21AW of the Evidence Act is mandatory.  Underlying it is the concern that a jury might consider that the mode of giving evidence in the case of an affected child (by video recording, in the absence of the defendant, and with a support person in the room), unusual and therefore engage in conjecture that skews the proper consideration of the evidence.
44. [44]
    But that is not a concern in a case such as this, where the trial judge was a very experienced criminal trial judge, well aware of the normality of the mode of evidence giving when an affected child is involved.  Indeed, Mr Wilson frankly accepted that no serious submission could be advanced that the trial judge fell into the traps that s 21AW was set to remedy or guard against.  Indeed, he said he did not advance any such submission,^[69] acknowledging that it was “a complaint of a technical nature about process, as opposed to substance”.^[70]
45. [45]
    However, as Fleming mandates, the obligation imposed by s 615B(3) to take the instruction in s 21AW(2) into account is not only to be discharged but also to be seen to be discharged.
46. [46]
    Therefore, as contended by the Crown, the issue is then whether this is a case for the application of the proviso.  The question to be addressed is whether, the trial being irregular, this Court is able to conclude for itself upon its review of the record that there has been no substantial miscarriage of justice.^[71]
47. [47]
    There is authority for the proposition that in a “word on word” case the absence of corroboration is something that may mitigate against the application of the proviso.^[72]  This is a “word on word” case, in the sense that the only evidence of the offending comes from COM and it was denied by APP.  However, in my view, there is a body of corroborative evidence.  Principally, that comes from the presence of APP’s DNA on the underwear.  That would be the case whether the DNA was on the outside or inside of the underwear.  As discussed below, the prospect of indirect transfer never rose above speculation for which there was no sound evidentiary base.
48. [48]
    In my view, there was also a degree of corroboration from a number of unchallenged facts:

    1. (a)
       COM was going to stay the night at APP’s house;
    2. (b)
       the children spent time in the lounge room with APP watching television before the mothers left;
    3. (c)
       COM borrowed APP’s jumper and put it on;
    4. (d)
       COM was in the lounge room watching a movie on APP’s phone when the battery went flat; APP then suggested that he and COM move to BRO’s room where there was a charger;
    5. (e)
       BRO remained in the lounge, where he eventually fell asleep;
    6. (f)
       APP and COM went into BRO’s room, and lay down, side by side, in BRO’s bed;
    7. (g)
       at some point COM tried to pull the jumper over her knees, but APP said not to as it would stretch the jumper; he said to take the jumper off, and she did so;
    8. (h)
       at some point while in BRO’s room, COM phoned her mother, asking for her to come home; and
    9. (i)
       COM and APP slept in the same bed that night.
49. [49]
    There was also corroboration in certain respects from the evidence of the mother.  She effectively rejected the prospect that APP might have handled the underwear by putting COM’s clothes out.  And she confirmed that APP had been asked to babysit COM and SIS.
50. [50]
    Further, COM’s credibility and reliability was supported by the manner and content of the preliminary complaint evidence.  The first occasion was the next morning when she told her mother, who had the presence of mind to record it.  The second was later the same day, when COM spoke to a police officer.  On each occasion COM related an account that contained the essence of the evidence she gave later.
51. [51]
    In my view, this is not a case which falls into the category in Nudd v The Queen,^[73] where Gleeson CJ said, referring to miscarriages of justice by aspect of outcome as opposed to process:^[74]

“[6] ... Even though it is impossible and undesirable to attempt to reduce miscarriages of justice to a single formula, there is at least one circumstance in which a failure of process cannot be denied the character of a miscarriage of justice on the ground of the appellate court's view of the strength of the prosecution case. That is where the consequence of the failure of process is to deprive the appellate court of the capacity justly to assess the strength of the case against the appellant. There may be other circumstances in which a departure from the requirements of a fair trial according to law is such that an appellate court will identify what occurred as a miscarriage of justice, without undertaking an assessment of the strength of the prosecution case. If there has been a failure to observe the conditions which are essential to a satisfactory trial and, as a result, it appears unjust or unsafe to allow a conviction to stand, then the appeal will be allowed.”

52. [52]
    Here the failure of process by not observing the instruction in s 21AW(2) does not deprive this Court of the capacity to assess the strength of the case against the appellant.  The corroboration of the complainant’s account sets this case apart from many others where the court has declined to apply the proviso.
53. [53]
    In my view, the miscarriage of justice does not lead to the conclusion that the verdict should be set aside and a retrial ordered.

Ground 2 – the DNA evidence

54. [54]
    Mr Wilson contended that the learned trial judge erred by accepting the DNA evidence as evidence supporting COM’s evidence.  Reference was made to the fact that: (i) the sample from the pyjamas was “too complex in nature” to permit a meaningful comparison; (ii) it was possible that the sample from the underwear could have been indirectly transferred there; and (iii) there was uncertainty as to where the sample came from, inside or outside of the underwear.  The contention was that the fundamental problem with his Honour’s analysis of the evidence is that without knowing whether the tape lift in question came from inside or outside the complainant's underwear, it is impossible to say whether the results of the DNA analysis are consistent with COM’s account.
55. [55]
    The error was said to be shown in this passage from the reasons for the judgment below:^[75]

“That evidence, if accepted, is powerful circumstantial evidence, supporting the complainant' s direct evidence that the defendant had his hand inside her underwear, touching her on her vagina and (her words) bum.

On the evidence before me, there is a clear denial by the complainant that the defendant got any clothes out of the bag in which she brought those clothes and gave them to her (exhibit Dl-14). Her mother … also denies that the defendant set out clothes for the kids (ie, the complainant and [SIS]) (Tl-12 L13).

A question put by counsel and answered in the negative by a witness is not evidence in the trial. This excludes each of those possibilities as an explanation for the presence of DNA.

With respect, given there is also no evidence by or on behalf of the defendant which raises any even vaguely credible explanation for the transfer of genetic material directly or indirectly from him to the underpants (and I hasten to note of course that there is no obligation on a defendant either to give or to call evidence), I am in a situation where I conclude that the only rational inference to be drawn from the DNA evidence is that the defendant has touched the complainant on the inside or outside of her underwear as she describes. I have no difficulty with that touching being either inside or outside the underwear on her descriptions of the defendant's actions. I note also that the presence of the defendant’s DNA on the underwear is not itself disputed.

Having reached that conclusion on the DNA evidence, it clearly becomes a powerful piece of objective evidence, supporting [COM’s] direct evidence that she was touched by the defendant’s hand and/or fingers, on her vagina and/or bum.”

56. [56]
    For the respondent, Mr Nardone contended that: (i) there was no doubt APP’s DNA was in the sample from the underwear; (ii) there was no evidentiary basis upon which a conclusion of indirect transfer could be based; the mother and COM both said APP had not touched the clothes when COM changed into them, and APP did not give evidence; (iii) there was no evidentiary base to establish the mechanism of how such indirect transfer occurred; suggestions that it could have come from a toilet, or the bed, were mere speculation.

Consideration

57. [57]
    In my view, there was no evidentiary base upon which a conclusion of indirect transfer could be confidently based.  The evidence stood thus:

    1. (a)
       both COM and the mother denied that APP touched the clothes by putting them out for COM or assisting her to dress;
    2. (b)
       in the lounge room COM put on APP’s jumper, but that was over the top of the nightie; there was no suggestion of it touching or being able to touch COM’s underwear; that jumper stayed on COM until sometime later in the bed when APP said to take it off;
    3. (c)
       the bed they moved to after the lounge was BRO’s bed, not that of APP; there was no evidence to suggest he had ever used it before that night;
    4. (d)
       in the bed COM had both the nightie and the jumper on until APP said to take the jumper off; that was after he had touched her underneath her underwear, as COM was trying to pull it over her knees to prevent further touching;
    5. (e)
       COM’s evidence as to how she was touched readily explains how APP’s DNA could be on both the outside and inside of her underwear; and
    6. (f)
       it was accepted that the evidence established that APP’s DNA was on the underwear.
58. [58]
    Mr Wilson urged that there was a possibility that APP’s DNA could have been indirectly transferred by the mere fact that COM and APP were in the same bed together.  I do not consider that contention rises beyond speculation.  Ms Adamson’s evidence as to indirect transfer generally was that it was a possibility but dependent on how much DNA was initially present in the first place, and the nature of the contact the underwear would have had to the object where DNA was present.  She was not asked to consider indirect transfer from merely being in the same bed.  However, the combination of two facts weighs heavily against acceptance of the postulated scenario.  First, there was no evidence that APP had ever been in the bed before that night.  Secondly, COM had a nightie over her underwear, and a jumper over that again until after she had been touched.
59. [59]
    The fact that Ms Adamson did not personally know where the sample came from is, in my view, of little moment.  The tape lifts were done by police scientific officers.  The description given was: “tape lift – inside and outside blue material underpants”.^[76]  The evidence of COM, if accepted, revealed that APP touched her on the underwear, both inside and outside, with his bare hand or fingers.  And, no further exploration of this issue was undertaken in cross-examination, in circumstances where it can be inferred that the defence had the same DNA report as Ms Adamson was asked to consider.
60. [60]
    However, it would not matter, in my view, whether the tape lift was outside or inside the underwear.  The fact that APP’s DNA was left on the underwear in either case was corroborative of COM’s account that she had been touch in the way she said.  Indeed, that is the way the trial judge reasoned.^[77]
61. [61]
    In any event the DNA evidence alone could not establish guilt.  It was only ever a matter of corroboration of COM’s evidence.  In my view, its utility as corroboration was not diminished by the matters raised in this ground of appeal.

Ground 3 – unsafe and unsatisfactory verdicts

62. [62]
    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^[78] requires that this Court perform an independent examination of the whole of the 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.
63. [63]
    As this Court held in R v Harris,^[79] those principles apply equally to a judge-alone trial.
64. [64]
    The role of the appellate court was recently restated in Pell v The Queen:^[80]

“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable.  The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”

The High Court restated the pre-eminence of the jury in R v Baden-Clay.^[81]  As summarised by this Court recently in R v Sun,^[82] in Baden-Clay the High Court stressed that the setting aside of a jury’s verdict on the ground that it is unreasonable is a serious step, because of the role of the jury as “the constitutional tribunal for deciding issues of fact”,^[83] in which the court must have “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.”^[84]

65. [65]
    The evidence at the trial is set out in sufficient detail in paragraphs [1] to [10] and [15] to [29] above.
66. [66]
    Leaving aside the DNA evidence, the matters raised in respect of COM’s evidence were:^[85]

    1. (a)
       the inconsistency as to whether count 1 occurred in the lounge room or bedroom: see paragraph [20](b) above;
    2. (b)
       COM’s evidence as to timing differed from her mother’s evidence;
    3. (c)
       COM and her mother differed as to where she was when she woke up; COM said she in BRO’s room, whereas the mother said she was on the couch in the lounge room;
    4. (d)
       COM and her mother differed as to where APP was when COM woke up; COM said he in BRO’s room, whereas the mother said she was on the couch in the lounge room and APP was not there;
    5. (e)
       when COM spoke to her mother in the morning she did not respond to her mother’s question as to where she was touched (“boobies”, “bum” or “vagina”);
    6. (f)
       there was “the possibility that COM was unreliable in relation to whether certain events were innocent or consistent with the allegations, such as the reason she came to be wearing the appellant’s jacket”; and
    7. (g)
       there was a suggestion she exaggerated at times, such as using the phrase “like he’s raping me” and referring to being touched “inside” her bum or vagina.
67. [67]
    The evidence of COM was largely consistent as between her s 93A interview and her oral evidence.  Of course, there were inconsistencies and discrepancies but not as to fundamental matters.  As to the central allegations, that APP touched her on and in her vagina, COM’s account remained the same.  Her evidence revealed an ability to give a detailed account of many peripheral matters, such as: the bed coverings in BRO’s room, the movie she was watching, the layout of the house (which she had only been to twice), and what APP was wearing.  Such details were rightly seen by the trial judge as supporting a conclusion that her evidence was credible and reliable.
68. [68]
    His Honour described her as “an intelligent, articulate witness who gave evidence that was age appropriate, that was not embellished, and again in my view much of what Mr Kennedy describes and submits as “inconsistencies” are entirely understandable differences given her age and the circumstances under which her testimony was given”.^[86]  A review of the transcripts of her evidence leads to the conclusion that it was open to his Honour to accept her evidence as credible and reliable.
69. [69]
    The major discrepancy was as to where the first touching occurred.  In her evidence at trial COM first suggested it was in the lounge room.  However, the trial judge said of that:^[87]

“[COM] has given inconsistent versions as to where the sexual touching first occurred, whether it was in the lounge room or in [BRO’s] bedroom. However, the particularised acts are not tied to a specific room. Also, the DNA evidence, as I have accepted, is powerful supporting evidence that the defendant put his hand and/or fingers on or in her underwear.”

70. [70]
    A review of COM’s evidence leads to the conclusion that it was open to the trial judge to reason that way.
71. [71]
    Her evidence received support from the preliminary complaint evidence.  In that respect this case was an unusual one, in that in each case the preliminary complaint was recorded, so there was no doubt as to what was said.  Indeed, the conversation with the initial police officer was also recorded on bodycam, so there was a video recording as well as audio.  And there was no delay in the preliminary complaint; each conversation was the day following the conduct alleged.
72. [72]
    It was accepted that the DNA evidence unequivocally established that APP’s DNA was on the underwear.  The doubts urged were as to the provenance of the sample, and suggestions of indirect transfer.  For the reasons given in that respect earlier, I consider it was open to the trial judge to conclude that COM’s evidence received a degree of corroboration from the DNA evidence.
73. [73]
    In R v Miller^[88] this Court recently emphasised the proper approach to an appeal where this ground is advanced:^[89]

“[16] In our respectful opinion, not enough attention has been given to the limitations enunciated in M v The Queen and which are consistent with early judicial appreciations of the limitations of an appeal against the verdict of a jury on a question of fact. It is fundamental that it is not sufficient for an appellant merely to show “discrepancies” or “inadequacies” in the evidence or to show that the evidence is “tainted” or “otherwise lacks probative force”. It is necessary to demonstrate that such features appear in the evidence “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”.

…

[18] An appellant who contends that the verdict of the jury was unreasonable or that it was unsupported by the evidence must identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduced the probative value of the evidence in such a way that the appellate court ought 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. The mere identification of weaknesses in the prosecution case is not enough to sustain the ground. As Brennan J said in M v The Queen, and as criminal practitioners and trial judges know very well, it is a sad but salutary experience of 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.”

74. [74]
    The trial judge articulated, in summary form, the reasons why his Honour rejected the attacks upon acceptance of COM’s evidence:^[90]

    1. (a)
       APP undoubtably had opportunity to commit the offences;
    2. (b)
       APP was able to touch COM, as she described either in the lounge room or in BRO’s bedroom;
    3. (c)
       COM’s mother was either downstairs (there was evidence that this was an upstairs-downstairs residence) or was out of the residence during the relevant events;
    4. (d)
       the time frames referred to by COM were the subject of legitimate criticism by the defence, but this was a child giving evidence, and there was no evidence that she was wearing a watch or had any other practical means of capturing elapsed time, and in his Honour’s view she was essentially describing short or longer periods of time in a childlike and not necessarily accurate way;
    5. (e)
       COM did not make a complaint in what was accepted as either one or two phone calls with her mother (from her mother’s evidence); COM’s explanation (that she was either frozen or scared) was both rational and entirely explicable;
    6. (f)
       all inconsistencies identified by the defence were more than capable of being explained by COM’s age and the circumstances under which the events occurred; in particular, the inconsistency as to whether the events the subject of count 1 occurred in the lounge room or the bedroom did not raise a reasonable doubt as to whether the offence actually occurred, as particularised.
75. [75]
    A review of the evidence shows that those conclusions were open.  Consequently, it was open to the trial judge to accept COM’s evidence as credible and reliable, and therefore be satisfied of guilt on both counts.
76. [76]
    The discrepancies and inconsistencies identified before this Court were weaknesses in the evidence which were agitated at trial.  In my view, the appellant has not demonstrated that the weaknesses reduced the probative value of the evidence in such a way that this Court ought to conclude that even making full allowance for the advantages enjoyed by the trial judge there is a significant possibility that an innocent person has been convicted.
77. [77]
    In my view, this ground of appeal must be rejected.

Conclusion

78. [78]
    I propose the following order:

1. Appeal dismissed.

79. [79]
    BOND JA:  I agree with the reasons for judgment of Morrison JA and with the order proposed by his Honour.
80. [80]
    CALLAGHAN J:  I have had the benefit of reading a draft judgment prepared by Morrison JA and gratefully adopt his Honour’s summary of the facts and circumstances.  I agree with most of that which has been written by his Honour, although I do not agree that counsel’s omission specifically to put to the complainant that the appellant did not touch her bottom was significant.  The issues were clearly delineated by the way in which counsel ran the case, no unfairness was caused by his questioning and no inference can be drawn from that omission.
81. [81]
    I do agree with his Honour’s conclusions in respect of each ground of appeal and that the appeal must be dismissed.
82. [82]
    The circumstances that are summarised by his Honour between paragraphs [48] and [50] and between paragraphs [68] – [73] combine to compel the conclusion that Ground 3 (unreasonable verdict) cannot succeed.
83. [83]
    As to the argument made under the heading of Ground 2 it is true that the possibility of DNA transference provided an explanation for the presence of the appellant’s DNA on the complainant’s underwear.  However, the significance of this issue is necessarily confined by the way in which the evidence was left after cross examination of the expert.  Perhaps knowing that it was as much as he could get, counsel was content to leave the issue on the basis that transference was “a possibility”.  Without more, and given the uncontradicted evidence of the complainant and her mother, it was only by a process of speculation that it was open to contemplate the possibility of transference.  It is true that it was not possible, on the evidence, to say with certainty whether the DNA had been found on the inside or the outside of the complainant’s underpants, but this was not a case which proof as to the manner in which the appellant’s DNA came to be on the complainant’s clothing was “an indispensable intermediary step in the jury’s reasoning to an inference of guilt”^[91].  This evidence did not, by itself, have to prove the presence of the appellant’s hand inside the complainant’s underpants. The evidence was led only to support the complainant’s evidence.  As such, it tended to confirm her account.  His Honour did not misdirect himself as to its significance, so Ground 2 must be dismissed.
84. [84]
    There was, as Morrison JA’s judgment reflects, some substance in Ground 1, which was astutely identified and skilfully argued by counsel appearing on a pro bono basis.  I agree with Morrison JA’s conclusion that it must be dismissed, but I wish to add some further observations which support my conclusion that it is open to apply the proviso in the circumstances of this case.
85. [85]
    Consideration of the proviso’s application “begins from identifying the error that was made at trial”.^[92]  That error is identified as the omission to instruct the jury in accordance with section 21AW of the Evidence Act.  This was an error of law.^[93]  It was not, in the circumstances, an error that could have affected the possibility that the appellant might be acquitted.
86. [86]
    That much can be asserted when regard is had to the rationale for the instruction, which was explained in R v Hellwig:^[94]

“Division 4A has provided, for reasons which Parliament deems sufficient, that a different procedure should be followed in cases involving a certain class of witness. The difference is such as is likely to surprise jurors who have some knowledge, whether first or second hand, of ordinary court proceedings. Without the benefit of the instructions required by s. 21AW(2) that surprise may well turn into conjecture adverse to an accused. The subsection is intended to dispel the surprise and to prevent the conjecture. That that occurs is clearly of the utmost importance to a fair trial. Parliament cannot have intended that the new procedures should prejudice the fair trial of an accused. It has enacted that, to ensure a fair trial, the jury must be instructed how to evaluate evidence led in this way.

To exclude an accused from the complainant child's presence, or to protect the child from the accused's presence is likely to give rise to speculation by a jury that the measure has been undertaken because of some particular characteristic of the accused which is likely to be associated with his guilt. It is essential that that speculation be quashed and directions specified in s. 21AW(2) are designed for that purpose.”^[95]

87. [87]
    That reasoning does not transpose to the circumstances of a trial by Judge alone.  It is acknowledged in this case that the learned trial judge had first-hand knowledge – and a lot of it – about ordinary court proceedings.  The procedures prescribed by Part 2 Division 4A of the Evidence Act are entrenched and engaged perpetually in the District Court.  It is impossible to allow that his Honour could have been surprised when they were used in this trial.  It follows that the fair trial of the appellant could not have been prejudiced.
88. [88]
    This was therefore not a situation in which the subject matter of the absent warning was important, and in that way, can be contrasted with the warning said to be required in Fleming.  However, it was also said that “the requirement of the section (which was in that case the equivalent of s 21AW(2)) being mandatory, there was also a miscarriage of justice according to the meaning of that term as used in s 668E(1) of the Criminal Code.  The mischief in this case is therefore not confined to an error of law.
89. [89]
    In Fleming the High Court allowed that there might be cases in which a failure to satisfy the requirements of s 21AW(2) was so trivial that it ought to be open to conclude that there has been a trial according to law.^[96]  The impact of the error in this case can be assessed in that way.  It was immaterial to both the process and the result – it did not affect, in any way, the appellant’s chance of an acquittal.
90. [90]
    If it was permissible to do so, I would dispose of the appeal on that basis.  It is difficult to identify the utility in taking the matter further.  However, since there has been an error of law and a miscarriage of justice, the effect of s 668E(1) of the Criminal Code is that the appeal must be allowed unless the proviso can be applied.  And the proviso may not be applied unless the court is persuaded that the evidence properly admitted at the trial proved, beyond reasonable doubt, that the appellant was guilty of the offence on which he was convicted by his Honour.^[97]
91. [91]
    That is a task which is to be undertaken on the whole of the record of the trial.  In this case that record includes the electronically recorded evidence of the complainant.  The Court is in as good a position as the trial Judge to examine this evidence.^[98]  However, whilst the observations made by the High Court in Pell v The Queen^[99] may not have the same force when considering an appeal from a trial by Judge alone, they nonetheless point the Court away from considering this material for itself.^[100]
92. [92]
    This appeal has not, therefore, been dismissed by reason of any demeanour-based consideration.  Rather the Court has, as Morrison JA has demonstrated, complied with the obligation to make an independent assessment of the evidence, whilst making due allowance for the “natural limitations” that might inhibit an appellate court in the exercise of this function.
93. [93]
    It is a feature of this case that there was at least one less “natural limitation” than there would have been if the conviction followed a trial by jury.
94. [94]
    That is because the use of the verdict – which is part of the record on which this exercise is undertaken^[101] – is not as problematic as it is in cases where the irregularity in the trial might have affected the verdict itself.  Much of that which has been written about a reluctance to apply the proviso in the case of verdicts rendered by a jury has to be considered in that light.
95. [95]
    It is not, however, an issue here.  The path of reasoning towards a conclusion of guilt was carefully explained by his Honour, and he recorded detailed findings.  In this way the appellant’s case can be contrasted with one like OKS v Western Australia,^[102] in which the “natural limitations” included the fact that only gauge as to the sufficiency of the complainant’s evidence (to prove guilt to the criminal standard) was the verdict, which itself may have been affected by a misdirection.  The application of the proviso in this case is not inhibited in that way.
96. [96]
    In Weiss, the High Court reiterated that the proviso, properly applied, will avoid the needless retrial of criminal proceedings.^[103]  That is what would happen if this appeal was allowed.  I join in the order proposed by Morrison JA.