R v DBV[2021] QCA 227

SUPREME COURT OF QUEENSLAND

1. [1]
   McMURDO JA:  After a five day trial by a jury in the District Court, the appellant was convicted of all 22 sexual offences charged on the indictment, each committed against his stepdaughter.  There was a count of maintaining a sexual relationship with the complainant, which was alleged to have occurred over a period of three years and four months, when the child was aged 11 to 14.  There was a count that the appellant showed the complainant a pornographic film.  There were five counts of rape (by the appellant penetrating the complainant’s mouth with his penis) and 15 counts of the indecent treatment of the child who was under 16 and under the appellant’s care.
2. [2]
   He was sentenced to a term of 10 years’ imprisonment on the maintaining offence, six year terms on the rape offences and three year terms on the other offences.  All of the terms were ordered to be served concurrently.
3. [3]
   He appeals against his convictions and applies for leave to appeal against his sentence of 10 years.
4. [4]
   In his notice of appeal, he challenged the convictions upon the ground (amongst others) that the verdicts were unreasonable, or could not be supported having regard to the evidence.  At the hearing, that ground was abandoned.  The grounds which were argued were that:

1. 1.
   A miscarriage of justice occurred because the learned primary judge erred in law in failing to put the case for the accused accurately and fairly to the jury.

2. 2.
   A miscarriage of justice occurred because the learned primary judge erred in law in failing to adequately direct the jury on the issue of a motive to lie as raised by the defence and prosecution.

3. 3.
   A miscarriage of justice has occurred as a consequence of the admission into evidence of a conversation between the complainant and Ms Webber on 30 October 2015, as preliminary complaint evidence.

4. 4.
   A miscarriage of justice occurred because the learned primary judge erred in law in failing to adequately direct the jury on the use to which they could use evidence as preliminary complaint.

The first ground

5. [5]
   The appellant’s argument cites the statement of the majority (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) in Domican v The Queen^[1] that:

“[T]he requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury.”

The submission also cites the application of that statement by the plurality in McKell v The Queen.^[2]  In the written submissions, it is said that the trial judge failed to properly put the appellant’s case accurately and fairly to the jury.

6. [6]
   That contention is then developed by reference to judgments of this Court and the New South Wales Court of Criminal Appeal.  The argument cites R v Mogg^[3] and R v FAC^[4] for the proposition that a trial judge should identify the issues and relate those issues to the relevant law and facts of the case.  In Mogg, McMurdo P added that ordinarily it was the duty of a trial judge to outline the main arguments of counsel.^[5]
7. [7]
   The argument emphasises a passage from the judgment of Muir JA in R v FAC,^[6] where his Honour endorsed the observations of the English Court of Appeal in R v Amado-Taylor^[7] that:

“… counsel’s closing speeches are no substitute for a judicial and impartial review of the facts from the trial judge who is responsible for ensuring that the defendant has a fair trial.  And the first step to such a trial is for the judge to focus the jury’s attention on the issues he identifies.  That responsibility should not be delegated … to counsel …

[the evidence] needs to be marshalled and arranged issue by issue.”

8. [8]
   Similarly, the argument cites R v Baker,^[8] where Morrison JA said that the requirement from s 620 of the Criminal Code for the trial judge to “instruct” the jury is a requirement that the judge identify the real issues of the case, the facts that are relevant to those issues and, provide an explanation as to how the law applies to those facts.
9. [9]
   Lastly, the argument cites what the statement by Gleeson JA (with whom Walton and Fullerton JJ agreed) in Lai v R^[9] that a trial judge must “fairly put before the jury the case that the accused makes – an obligation which extends to explaining any basis for which the jury might properly return a verdict in the accused’s favour.”
10. [10]
    To those authorities on the general requirements of a summing-up should be added the judgments of the High Court in RPS v The Queen^[10] and Castle v The Queen.^[11]
11. [11]
    In RPS v The Queen, Gaudron A-CJ, Gummow, Kirby and Hayne JJ said:

“[41] Before parting with the case, it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions.  The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused.  That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case.  No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury.  Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues.  It will require the judge to put fairly before the jury the case which the accused makes.  In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence.

[42] But none of this must be permitted to obscure the division of functions between judge and jury.  It is for the jury, and the jury alone, to decide the facts.  As we have said, in some cases a judge must give the jury warnings about how they go about that task.  And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues.  But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it.  Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel.”

(Footnotes omitted.)

12. [12]
    In Castle, Kiefel, Bell, Keane and Nettle JJ said:^[12]

“This is not to say that the omission of a summary of the salient parts of Castle’s evidence in summing-up her case to the jury necessarily caused the trial to miscarry.  How the judge structures the summing-up and the extent to which the judge reminds the jury of the evidence is a matter for individual judgment and will reflect the complexity of the issues, and the length and conduct of the case.  The essential requirements of the summing-up in a criminal trial were stated in RPS v The Queen and do not need to be restated.  Needless to say, they include that the judge must fairly put the accused’s case, an obligation which extends to explaining any basis upon which the jury might properly return a verdict in the accused’s favour.  Where, as here, the jury is supplied with a transcript of the evidence the judge may consider that reference to those parts of the evidence that bear on the determination of particular issues does not require reading passages from the transcript or summarising it.”

(Footnotes omitted.)

13. [13]
    The authorities cited at the forefront of the appellant’s submissions identify several requirements of a summing-up.  As the argument was developed, however, the appellant’s complaint of this summing-up is that the trial judge did not identify, for each count, the evidence upon which it was based.
14. [14]
    The summing-up occupied approximately one and a quarter hours.  It began in the usual way, with a statement of the charges, followed by the usual directions, required in every case, about things such as the onus and standard of proof.  The judge then went to the subject preliminary complaints.  Evidence of that kind had been given by the complainant’s mother, the complainant’s cousin and a psychologist whom the complainant had consulted.  The judge detailed the evidence of each of those witnesses, by reading to the jury extensive passages from the transcript, and there could be no complaint that any evidence of this kind was overlooked.  This section of the summing up was then completed with instructions as to the particular and limited use which could be made of preliminary complaint evidence.
15. [15]
    This led the judge to the subject of the complainant’s credibility or reliability.  His Honour gave general directions as to the way in which the jury might use consistencies or inconsistencies in assessing her credibility or reliability, emphasising that this was a matter for the jury alone.  At this point, however, his Honour did not instance any suggested inconsistency.
16. [16]
    The judge then instructed the jury, in the usual way, that it was the routine practice of the court to record police interviews of child witnesses and for the recordings to be presented as evidence of the child.  In that respect, he referred to the evidence of the complainant and the evidence of her two brothers.  The judge gave similar directions as to that part of the testimony of the complainant and her brothers which was pre-recorded.
17. [17]
    The judge then gave directions on the issues of whether the complainant had a motive to lie, to which I will return discussing the second ground of appeal.
18. [18]
    This was followed by a direction that the jury was to consider each charge separately, evaluating the evidence relating to that particular charge to decide whether they were satisfied beyond reasonable doubt that the prosecution had proved its essential elements.  His Honour gave the usual direction that the evidence in relation to one offence is different from that in relation to another, and that therefore their verdicts need not be the same.  The jury was directed that if they had a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one of more of the counts, that had to be taken into account in assessing the truthfulness or reliability of her evidence generally.  The judge gave directions as to the uses which could or could not be made of the jury’s conclusion of guilt on one or more counts, in considering the other counts.  There is no complaint as to those directions.  Nor is there a complaint as to his Honour’s directions as to the use which could be made of evidence of uncharged acts involving the complainant.
19. [19]
    The judge reminded the jury that they had heard evidence of other conduct by the appellant towards the complainant, which she had referred to as emotional abuse and manipulation.  He reminded them that she had spoken of controlling behaviours such as being forced to eat food which she did not like.
20. [20]
    The judge directed the jury, correctly, that they should not draw any inference from the fact that the appellant did not give evidence.  The jury was reminded that the complainant’s mother gave evidence having been called by the appellant.  The jury was instructed that this did not mean that the burden of proof had in any way shifted to him.
21. [21]
    The judge then instructed the jury as to the elements of the charges, before concluding with a summary of the addresses by the prosecutor and the appellant’s counsel.
22. [22]
    Consequently, the jury was given a detailed reference to the evidence only concerning the evidence of preliminary complaints.  Apart from a few references to the complainant’s evidence and references to any parts of the complainant’s evidence in the arguments as summarised by the judge, the jury was not given any summary of the complainant’s evidence.  More particularly, the jury was not reminded, count by count, of the complainant’s evidence which would have to be accepted in order for the jury to convict on that count.
23. [23]
    At the request of counsel, the jury were given some further directions, one of which related to uncharged acts, in which the jury was briefly referred to parts of the complainant’s evidence.
24. [24]
    The question under this first ground of appeal is whether this resulted in a miscarriage of justice.  The question must be answered by reference to the nature of the evidence, the way in which this case was conducted by counsel and, more generally, to the course of the trial.  In R v Courtney-Smith (No 2),^[13] the New South Wales Court of Criminal Appeal, constituted by Gleeson CJ, Kirby P and Lusher AJ, said:

“In default of standard formulae for charging juries, and new statutory rules confining judges, wholly or substantially to instruction on the law, the summing up to a jury in a criminal trial will necessarily be an individualistic endeavour.  It is impossible in those circumstances to stamp upon judicial performance a monotonous uniformity.”

25. [25]
    In respect of the evidence, what a trial judge is bound to do is to refer to the evidence to the extent that that is necessary to ensure that the jurors had a sufficient knowledge and understanding of it to discharge their duty to determine the case according to the evidence.^[14]
26. [26]
    The complainant’s evidence in chief comprised three disks recording her interviews by police on 29 and 30 October 2015, together with a small part of her evidence which was given in a pre-recording in July 2017.  She was cross-examined in that pre-recording.
27. [27]
    During the prosecutor’s opening address to the jury, particulars of the charges were tendered and became exhibit 1.  The particulars consisted of a document setting out the charges in the order in which they appeared on the indictment, and another document setting them out in the order in which they were identified in the police interviews.  The particulars distinguished between those counts allegedly committed in Cairns and those allegedly committed in Townsville.  The particulars, for each count, precisely described the act or acts of the appellant, and gave a distinctive description of the incident.  The jury had the benefit of these particulars as the complainant’s evidence was played to them, and also as they considered their verdicts.  It is not suggested that the particulars were unhelpful or in any respect ambiguous.  Nor, more generally, is it suggested that the jury would not have been able to relate a certain part of the complainant’s testimony to a certain charge.  In this case, there was not the risk that when considering a count, some of the jury would be considering one incident whilst other jurors would be considering another incident of which the complainant had testified.^[15]
28. [28]
    Nor, in my view, was there a risk that the jury could have forgotten the complainant’s testimony by the time they were considering their verdicts.  The trial commenced on Thursday, 5 March 2020.  On that day, evidence was given by the complainant’s cousin and the complainant’s psychologist, followed by evidence from the complainant’s father and her maternal grandmother.  The jury then heard the (pre-recorded) evidence of the complainant’s brothers, which was evidence of the circumstances of the family, in what was described as a toxic environment.  The Court did not sit on the following day and the trial resumed on the morning of Monday, 9 March.  The jury began to hear the complainant’s evidence on that afternoon.  That evidence was played to the jury throughout the next day and the pre-lunch session on the fourth day of the trial.  On that afternoon, the complainant’s mother gave evidence in the defence case before defence counsel commenced his address at 3.47 pm.  His address was completed on the next day, and following the prosecutor’s address, the summing up commenced.
29. [29]
    Consequently, nearly all of the evidence which was heard by the jury from the beginning of that week was that of the complainant, and effectively one day of the trial then followed before the jury began their deliberations.  The verdicts were given about two hours later.  The jury did not request any evidence to be read or played during the course of their deliberations.
30. [30]
    Having regard to the particulars which the jury had throughout the trial and the timing of the complainant’s evidence in the course of the trial, it is not demonstrated that the jurors would have had an insufficient knowledge and understanding of the evidence in order to discharge their duty.  Some reminder by the judge, count by count, of the relevant incident as described by the complainant, would not have been inappropriate.  But it was unnecessary in this case.  It is not irrelevant that defence counsel made no request for any further direction.  The first ground of appeal must be rejected.

The second ground

31. [31]
    The judge directed the jury as follows:

“Now, you heard a lot from both [the prosecutor and defence counsel] about the issue of whether, in fact, the complainant had a motive to lie. In the cross-examination in particular, the complainant was asked questions concerning a motive for her to lie in her account concerning the conduct of the defendant. You will recall that there were suggestions that [the complainant] did not like the defendant, wanted him and her mother to split up, that she wanted to move out and live with her father, and that this had all motivated her to tell the tale that she tells. You have heard much of this and much about this in the addresses by counsel, and I shall come to it during my comments in relation to their rival contentions.

However, what I do note to emphasise to you in relation to that matter is that if you reject the motive to lie put forward on behalf of the Defence, that does not mean that you would automatically find that the complainant is telling the truth. You need to remember, of course, that the Prosecution needs to satisfy you that the complainant is telling the truth. It is the Prosecution’s burden to satisfy you beyond reasonable doubt of the guilt of the defendant.”

32. [32]
    The appellant’s argument refers to the judgment of Sofronoff P in R v Bevinetto.^[16]  The President there described three ways in which a jury might be misled into engaging in illogical reasoning where there is an issue whether a complainant, or another witness, has a motive to make and maintain a false allegation.  The first, he said, was that “a jury’s rejection of the suggested motive may leave it to conclude, from that rejection alone, that there can be no motive to lie and that the complainant’s credibility is thereby enhanced.”^[17]  The second was that a jury might wrongly think that an accused should be well placed to identify the complainant’s motive to fabricate the allegation if that motive exists, and that “the accused’s failure to identify or prove such a motive tends, by itself, to prove that there is no motive.”^[18]  The third was that “the process of reasoning [c]ould involve the jury in unwittingly placing the burden of proving the absence of motive upon the accused”.^[19]  The President did not formulate a draft direction to meet these risks.  The guidance which was given by his judgment is that a trial judge must decide whether to give a direction having regard to “the real issues in the case” and to “how the parties have conducted their respective cases”.^[20]
33. [33]
    The direction given in this case addressed a risk in the first category described by the President in Bevinetto.  It also addressed a risk of the third kind.  A risk of the second kind did not arise here, because in this case, there was a motive which was suggested by the defendant.
34. [34]
    In my opinion, the direction given to the jury on this issue was adequate and ultimately the appellant’s counsel here does not suggest otherwise.  His submission is a more specific complaint of the kind within the first ground of appeal, namely a complaint that the judge did not detail the evidence upon which the accused relied in suggesting that there was a particular motive to lie.
35. [35]
    The judge reminded the jury of the cross-examination of the complainant, concerning a motive for her to lie, by reminding them of suggestions that the complainant did not like the accused, wanted him and her mother to split up, and that she wanted to move out and live with her father.  It was unnecessary for his Honour to describe that evidence in any further detail.  It had not been long since the jury had heard the evidence and heard the arguments about it.  This second ground of appeal must be rejected.

The third ground

36. [36]
    There was evidence of a witness, Ms Webber, which was admitted as evidence of preliminary complaint under s 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld).  Ms Webber was a psychologist who was consulted by the complainant.
37. [37]
    Section 4A(1) applies in relation to an examination of witnesses, or a trial, in relation to a sexual offence.  Section 4A(2) provides:

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

38. [38]
    Section 4A(6) defines the terms “complaint” and “preliminary complaint” as follows:

“(6) In this section—

complaint includes a disclosure.

preliminary complaint means any complaint other than—

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

2. (b)
   a complaint made after the complaint mentioned in paragraph (a).

Example—

Soon after the alleged commission of a sexual offence, the complainant discloses the alleged commission of the offence to a parent (complaint 1). Many years later, the complainant makes a complaint to a secondary school teacher and a school guidance officer (complaints 2 and 3). The complainant visits the local police station and makes a complaint to the police officer at the front desk (complaint 4). The complainant subsequently attends an appointment with a police officer and gives a formal witness statement to the police officer in anticipation of a criminal proceeding in relation to the alleged offence (complaint 5). After a criminal proceeding is begun, the complainant gives a further formal witness statement (complaint 6).

Each of complaints 1 to 4 is a preliminary complaint. Complaints 5 and 6 are not preliminary complaints.”

39. [39]
    Evidence of this kind is received on a limited basis.  As Thomas JA said in R v LSS:^[21]

“Its effect is confined to showing consistency of statement or conduct, the evidence having itself no probative value or capacity to prove the truth in what is said (or written).”

40. [40]
    Ms Webber testified that she had seen the complainant in the course of five sessions during October 2015, the last of which was on 30 October.  She then gave this evidence:

“Okay. Now, during those – the course of those sessions, you discussed a number of things with her, but what I want to ask you is this. During the course of those sessions which I have mentioned, were there disclosures of a sexual nature which were made to you by [the complainant]?---[The complainant] only mentioned that it took place. She didn’t give any details.

Okay. Now, are you able to recall - - -?---Only on that last time, I think. …”

41. [41]
    Ms Webber said that from “the very first session”, the complainant had told her that she had been sexually abused when she was between the ages of 12 and 14 and a half.  However prior to the session on 30 October, the complainant had not given any detail of the abuse.  (Ms Webber explained that she needed to establish “safety and rapport” in her relationship with the complainant before asking her for that detail).  There was then this evidence:

“Now, you’ve mentioned that there was a disclosure on the 30^th of October?---Yes.

Can you tell us about that?---So on the 30^th she said that she had started talking to the police about her sexual abuse.

And there was no mystery about that. She went to the police on the 29^th of October where she was interviewed, and she went back to them on the 30^th. But on the morning of the 30^th, she came and saw you first before she went and spoke to the police?---Yes. Again, yes.

Yes?---But she didn’t give any details.

So when - - -?---She said she started talking, that’s all.

So when she spoke to you she didn’t give any details?---No.

Is there anything that she did – can you tell us what it was that she did say?---Well, she said that there was a time – sorry, correction – she did say, according to my notes here, that they occurred regularly, nearly every morning - - -

No, I just want to know about a specific occasion, okay?---On the 30^th – when she mentions it to me on the 30^th?

Yes?---Is that what you mean? Yep.

Yes. So there was a specific occasion that was referred to on the 30^th?---Yes, when – yes. Blood on the shorts. Is that - - -

Yes. Tell me about that. What does she say?---She said that at one occasion, that she was able to recall – it was during her menstruation and there was blood on the perpetrator’s shorts, and those shorts went missing.”

42. [42]
    Something was then related by Ms Webber, as to what the complainant had said to her in this session on 30 October about a conversation between the complainant and her mother.  Objection was taken to that part of her evidence, but not to the passages which I have set out.
43. [43]
    The question of admissibility under this ground of appeal arises because by the time of the session with Ms Webber on 30 October, the complainant had been interviewed by police.  However it was not until a subsequent interview with the police, which occurred later on 30 October, that the complainant told police of the incident which she had disclosed to Ms Webber on that morning.  That incident became the subject of count 16 on the indictment.  In so far as that offence was concerned, this was a complaint about the alleged commission of an offence which was made to Ms Webber, before her complaint to police in relation to that alleged offence.
44. [44]
    In R v DBA,^[22] preliminary complaint evidence was admitted in relation to counts 3 and 4 on an indictment, although it was made after the first formal witness statement to police in relation to counts 1 and 2.  The offending in relation to counts 3 and 4 occurred at a distinct time, and the preliminary complainant on counts 3 and 4 was described by Fraser JA (with whom Daubney and Applegarth JJ agreed) as a complaint “about an offence which was different and entirely separate from the offence the subject of the witness statement”.^[23]  Notably, for the present case, Fraser JA said that:

“The application of s 4A may well be more complex in relation to proceedings for an offence under s 229B of the Criminal Code (Qld) of maintaining an unlawful sexual relationship.  But that is not this case.”^[24]

45. [45]
    By the time of the session with Ms Webber on 30 October 2015, the complainant had disclosed to police information sufficient to reveal an unlawful sexual relationship maintained with her by the appellant.  By s 229B(2), ^[25] an unlawful sexual relationship is a relationship that involves more than one sexual act over any period.  An unlawful sexual act, in s 229B, means an act that constitutes, or would constitute (if it were sufficiently particularised) an offence of a sexual nature.^[26]  An adult may be charged on the one indictment with the offence of maintaining an unlawful sexual relationship with a child and one or more offences of a sexual nature alleged to have been committed by the adult in relation to the child, and the adult may be convicted and punished for any or all of the offences charged.^[27]
46. [46]
    Clearly count 16 charged the appellant with a distinct offence from the maintaining offence, charged by count 1.
47. [47]
    The present question of admissibility must be considered in relation to the offence charged by count 16.  In the terms of s 4A(2) the question is whether this part of Ms Webber’s evidence that the occurrence of the event the subject of count 16 was disclosed to her, was evidence of a complaint made by the complainant about the alleged commission of that offence.  Clearly it was, unless it was a complaint which had been made in the police interview on the previous day.^[28]
48. [48]
    As earlier noted, the prosecutor tendered particulars of the counts listed in the order in which the events had been related by her to police.  In the interview conducted on 29 October 2015, the complainant detailed events which she described as occurring on five distinct occasions.  Those events became the subject of counts 6, 7, 5, 8, 13, 14 and 17.  It was not until the following day, and after her session with Ms Webber, that she disclosed to police the event which became count 16.  This was a different occasion from any of those which she had described to police in the first interview.  This was not a case where it could be said that count 16 was a more particular disclosure of an occurrence which had been previously disclosed to police.^[29]
49. [49]
    It follows that the disclosure to Ms Webber, on the morning of 30 October 2015, of the event which became count 16 was a complaint made before the complainant’s first formal witness statement in anticipation of a criminal proceeding in relation to that alleged offence.  The fact that events had been disclosed to police on the previous day, by which it was disclosed that the appellant had maintained an unlawful sexual relationship with the complainant, did not matter for the admissibility of this preliminary complaint upon the trial for the offence charged by count 16.  As Fraser JA said in R v DBA:

“The plain meaning of the section is that the only formal witness statement by the complainant to police which excludes evidence of a subsequent complaint is the statement given “in” or “in anticipation of” a criminal proceeding in relation to the same alleged offence which is the subject of the subsequent complaint.”^[30]

50. [50]
    This evidence by Ms Webber was admissible as a preliminary complaint of count 16.  This ground of appeal fails.

The fourth ground

51. [51]
    The remaining ground is that the judge erred in law in failing to adequately direct the jury as to the use of which they could make of the evidence of the preliminary complaint made to Ms Webber.  The appellant’s argument is that the judge should have directed the jury that they could use this evidence only to assess the complainant’s credibility about count 16.  No such direction was requested by the appellant’s trial counsel, and the judge was not asked to rule upon any question of law which might have been raised by that request.
52. [52]
    As I have discussed, in his summing up the judge made extensive reference to the evidence of preliminary complaints.  This was no doubt because the address to the jury by the appellant’s counsel sought to make much of what was said to have been a lack of detail in the preliminary complaints, and inconsistencies between them and the complainant’s testimony.  Counsel reminded the jury that, in her first interview by police, the complainant had said that Ms Webber knew “the full story, like, most of it anyway.  There is a lot.  There’s heaps of stuff.”  However, counsel reminded the jury, Ms Webber’s evidence was that, at that time, she knew nothing of the details of the abuse of the complainant, and that it was not until the session on 30 October that the complainant detailed any offending, by disclosing what became count 16.  Counsel argued that this inconsistency detracted from the credibility of the complainant.  That was a submission made about her credibility overall.  It is unsurprising, therefore, that counsel did not ask the judge to direct the jury that Ms Webber’s evidence was relevant only to the assessment of the complainant’s credibility when considering count 16.  Such a direction would not have assisted the defence case, and it is likely that it would have disadvantaged it.
53. [53]
    A further explanation for such a direction not being sought is that Ms Webber’s evidence of this complaint could not have significantly added to the complainant’s credibility in the minds of the jury.  The complainant disclosed the event the subject of count 16 when interviewed by police almost immediately following her session with Ms Webber.  The credibility of her disclosure to police could not have been supported by the fact than only hours earlier on that day, she had said the same thing to Ms Webber.
54. [54]
    The prosecutor’s argument to the jury said nothing about the preliminary complaint evidence.
55. [55]
    For these reasons, there was no error of law by the judge in not directing the jury in the terms now suggested by the appellant’s argument.  The judge was not requested to do so, and in the way in which the defence case was argued to the jury, any effect of that direction could only have been to the appellant’s disadvantage.  This fourth ground fails.
56. [56]
    It follows that the appeal against these convictions should be dismissed.

The application to appeal against sentence

57. [57]
    The unlawful sexual relationship with the complainant was maintained by the appellant for a period of more than three years, during which the complainant was aged 11 to 14 years.
58. [58]
    In his sentencing reasons, the trial judge described the offending in these terms:

“As I have indicated, the offending is extremely serious. The counts of rape and the count of maintaining a sexual relationship with a child carry penalties of life imprisonment, which of its very nature reflects the incredibly serious nature of the matters for which you have been found guilty by a jury. … I note that particulars of the offending related to what was described by the prosecutor today as escalating offending, and it is clear that that was certainly the case.

Initially the offending involved you touching the complainant child’s breasts with your hands skin on skin. There was then an escalation, in that there was a naked shower and then you having the child touch your penis skin on skin. There was then a further development in the offending against the child which involved oral sex with the use of a condom, escalating further to oral sex without a condom on at least one occasion, and then a further escalation, particularly from the perspective of the child who struggled to deal with the circumstances of the offending, where there was mutual oral sex.

There were then further incidents of what were described as ‘pretend sex’, where you would touch the complainant child, the victim in this matter, with your penis to her vagina and rubbed, on occasion, your penis near her vaginal area, though, on top of her clothes. There were also instances of simulated sexual activity, including what was described in the particulars as the ‘rocking on the defendant’s penis time’. The offending occurred over a significant period, some three years or thereabouts, the indictment referring to the offending from about April of 2012 until August of 2015.”

59. [59]
    The judge said that the offending had had “the most catastrophic effects” upon the complainant, and for the complainant’s relationship with her mother and brothers.  In a victim impact statement, the complainant recalled her suicidal thoughts as the abuse continued.  She described her condition as being “suicidal, depressed, angry, sad, confused and ultimately broken”.  Even at the date of the sentence hearing, nearly five years after the period of the offending, the complainant was still receiving psychological treatment and experiencing waves of anxiety and depression.  She described the ongoing impact of the abuse on her daily life and work.
60. [60]
    The appellant was born in 1962, so that he was aged 49 to 53 when offending and nearly 58 years when he was sentenced.  He had a criminal history, both in Victoria and in Queensland, in which he had been to prison, but not for similar offending.  The judge noted that the previous offending was some decades earlier, and that the appellant was not “burdened with” a criminal history.
61. [61]
    The appellant was in poor health by the time he was sentenced.  As a result of what was described by one doctor as a cerebral vascular accident in 2015, he was impaired in his cognitive status and memory to the extent of “a significant deficit”.  From 2018, he had been under the care of a number of carers or support workers every day, for seven to eight hours a day.  He had received assistance with shopping, preparation of meals, attending “medical, psychological and physiotherapy appointments”, laundry, dressing and banking tasks.  The judge accepted that there was “clearly an indication of significant injuries and ongoing circumstances for [the appellant], both physical and mental, as a result of a stroke”.  The judge accepted that the appellant’s health was a factor to be taken into consideration in that any period of incarceration would be more difficult for him than it would be in the case of a man of a similar age but without his medical condition.
62. [62]
    The judge remarked that the absence of any plea of guilty reflected the fact that there had been, at least until that point, no remorse by the appellant.
63. [63]
    In the judge’s view, the consideration of deterrence loomed large, as did the consideration of community denunciation.
64. [64]
    The judge noted the prosecutor’s submission that a penalty in the range of 10 to 12 years was appropriate, and a submission by the appellant’s counsel that a penalty of nine years would be appropriate.  His Honour noted the difference between those two outcomes, in so far as a mandatory declaration of the commission of a serious violence offence was concerned.  Balancing all of the considerations, his Honour came to the view that a term of 10 years’ imprisonment should be imposed for the maintaining offence.  A declaration was made in relation to 20 days served in pre-sentence custody.
65. [65]
    The appellant challenges the sentence upon the sole ground that it is manifestly excessive.  The appellant’s argument cites four cases as relevant yardsticks.
66. [66]
    The first case is R v C; Ex parte Attorney-General (Qld).^[31]  In that case, the respondent was sentenced, upon his plea of guilty, for an offence of maintaining a sexual relationship with a child with the circumstances of aggravation that the victim was his daughter and under his care.  The sexual acts included sodomy and oral sex in which the complainant was forced to swallow his ejaculate.  The offending occurred over a two and half year period.  The complainant was then aged 13 to 16 years.  He was sentenced to nine years’ imprisonment with post prison community based release recommended after four years.  On an appeal by the Attorney-General, that sentence was increased to a term of 10 years’ imprisonment, with the necessary declaration that he had been convicted of a serious violent offence.  It is submitted that the offending in that case was yet more serious than in the present case.  In my view, the difference, such as it was, was not significant.  Of more significance is the fact that the offender in that case had pleaded guilty to the offences.
67. [67]
    The second case upon which the appellant relies is R v DBC; Ex parte Attorney-General (Qld).^[32]  In that case the Attorney-General unsuccessfully challenged a sentence of nine years’ imprisonment for an offence of maintaining an unlawful sexual relationship with the offender’s daughter, who was aged 11 or 12 years at the time.  That offender pleaded guilty and when interviewed by police, volunteered that there had been further offending conduct.  The period of the relationship was 17 months.
68. [68]
    The third case is R v EK.^[33]  A sentence of 10 years’ imprisonment in that case was not disturbed on appeal.  There were two complainants, both stepdaughters of the offender.  He was aged between 52 and 58 during the period of his offending and he was 65 when sentenced.  He had no criminal history.  As a result of his military service, he suffered from a variety of physical and psychological problems.  His relationship with one complainant lasted from when she was 13 to when she was 16.  His relationship with the other complainant commenced when the girl was 11 and concluded when she was 19 (although he was not charged with conduct which occurred after she turned 16).  He pleaded guilty to the offences at an early stage.
69. [69]
    The other case upon which the appellant relies is R v Fenton,^[34] in which a sentence of 10 years’ imprisonment was reduced to nine years, with a parole eligibility date after five years and five months (which was the time served as at the date of the judgment).  The complainant was the foster daughter of the applicant’s girlfriend and the offending occurred for about two years when the complainant was aged 13 to 15.  The offending involved penile vaginal intercourse and included some threats to the girl with a knife.  A number of specific errors caused this Court to resentence that prisoner.  In the opinion of Holmes JA (with whom McMurdo P and Atkinson J agreed) the case was not as serious as R v C; Ex parte Attorney-General (Qld) or R v DBC; Ex parte Attorney-General (Qld), because both of those cases involved maintaining charges involving the relevant offender’s own daughter.  In Fenton, the appellant was not the complainant’s father, stepfather or carer.  The period of offending in Fenton was not as lengthy as in those other cases, Holmes JA concluding that it was in fact 19 months.
70. [70]
    None of those cases provides significant support for the appellant’s argument.  All but Fenton were cases where there had been a plea of guilty.  Fenton was not in the position of a stepfather of the complainant, as was the present appellant.
71. [71]
    The period of offending in this case was more than twice as long as that in Fenton.  Although Fenton is a relevant yardstick, it did not require the judge in this case to impose a sentence of less than 10 years’ imprisonment.
72. [72]
    In my conclusion the sentence which was imposed was not such as to indicate that there had been some error in the exercise of the sentencing discretion.  I would refuse the application for leave to appeal against sentence.

Orders

73. [73]
    I would order as follows:

3. (1)
   Appeal against convictions dismissed.

3. (2)
   Application for leave to appeal against sentence refused.

74. [74]
    MULLINS JA:  I agree with McMurdo JA.
75. [75]
    NORTH J:  I agree with the reasons of McMurdo JA and the orders proposed by his Honour.