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R v CR[2021] QCA 291

SUPREME COURT OF QUEENSLAND

CITATION:

R v CR [2021] QCA 291

PARTIES:

R

v

CR

(appellant)

FILE NO/S:

CA No 256 of 2020

DC No 318 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Beenleigh –R v CR [2020] QDC 269 – (Chowdhury DCJ)

DELIVERED ON:

23 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

8 December 2021

JUDGES:

McMurdo and Mullins JJA and Daubney J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where the appellant was charged with a number of sexual offences against the daughter of his de facto partner – where there had been delay – where the appellant was convicted of some offences, and acquitted of others, by a judge sitting alone – whether the verdicts were unreasonable or insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – REVIEW OF EVIDENCE – where there had been delay between the offending and its report to police – where the trial occurred after the introduction of s 132BA of the Evidence Act 1977 (Qld) – whether the judge gave appropriate directions

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – REVIEW OF EVIDENCE – where the appellant was convicted of a number of sexual offences against the daughter of his de facto partner – where there were some unsatisfactory aspects of the complainant’s evidence – whether the judge gave appropriate directions

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – REVIEW OF EVIDENCE – where the appellant was convicted of a number of sexual offences against the daughter of his de facto partner – whether the judge gave appropriate directions in accordance with Markuleski

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO A MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted of a number of sexual offences against the daughter of his de facto partner – whether the trial judge gave adequate reasons for conviction

CRIMINAL LAW – APPEAL AND NEW TIRAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO A MISCARRIAGE – where the appellant was charged with a number of sexual offences against the daughter of his de facto partner – where the prosecution amended the indictment at the close of the third day of the trial – where the period of the offending was said to be at an earlier date – where the appellant’s counsel did not object to the amendment – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWERS OF COURT ON APPEAL – TO CONSIDER FRESH EVIDENCE – where the appellant was charged with a number of sexual offences against the daughter of his de facto partner – where the prosecution amended the indictment at the close of the third day of the trial – where the period of the offending was said to be at an earlier date – where the appellant’s counsel did not object to the amendment – where the appellant argues that the amendment prevented him from gathering exculpatory evidence – whether the evidence would have had probative value to any issue at the trial

Criminal Code (Qld), s 615C

Evidence Act 1977 (Qld), s 312BA

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, applied

Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, considered

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited

R v BDM [2021] QCA 108, cited

R v Kelly [2021] QCA 134, cited

R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, cited

Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, considered

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

S D Malcomson for the appellant

D Kovac for the respondent

SOLICITORS:

Reardons for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    McMURDO JA:  On 23 October 2020, a judge of the District court, sitting without a jury, found the appellant guilty of several sexual offences against a child.  The appellant was convicted of one count of maintaining a sexual relationship with the child (count 1), one count of the indecent of a child aged under 16 years (count 2), two counts of rape (counts 3 and 4), two counts of unlawful carnal knowledge of a child under 16 (counts 5 and 11) and one count of unlawful carnal knowledge of a child aged under 16 years and under his care (count 6).  The appellant was acquitted of four other counts on the indictment, which also alleged sexual offending in respect of the same complainant.  Two counts on the indictment (counts 7 and 10) were discontinued at the end of the prosecution case.  He was sentenced to a number of concurrent terms of imprisonment, the longest of which was a term of eight years upon count 1.
  2. [2]
    He appeals against those convictions upon several grounds.  The judge’s findings are said to have been unreasonable or unsupported having regard to the evidence.  It is said that the trial judge misdirected himself having regard to Longman v The Queen,[1] Robinson v The Queen,[2] R v Markuleski[3] and (perhaps) R v UC.[4]  A further ground of appeal is that there was a miscarriage of justice, affecting at least some of the counts by the judge permitting an amendment to the indictment to allege an earlier date for the commencement of the period in which the offending was said to have occurred.  There is a further argument, affecting one of the counts (count 11) that there was a miscarriage of justice by available and exculpatory evidence not being adduced.  There is an application to adduce further evidence, which is said to disprove some of the charges.  And there is a complaint that the judge gave inadequate reasons.

The prosecution evidence at the trial

  1. [3]
    The complainant was a girl born in the middle of 1989.  Her mother met the appellant in an online chatroom at some time in 2001, when the mother, the complainant and the complainant’s brothers were living interstate and the appellant was living in Jimboomba.  There were formal admissions at the trial that the complainant and her family moved to Queensland in the middle of 2002, and that they moved to a certain address on 1 August 2002, and that they moved to another house near Brisbane at the end of 2004 or the beginning of 2005.  Counts 2, 3, 4 and 5 were alleged to have been conduct which occurred, in a period from 12 August 2001 to 3 July 2005, at the appellant’s house in Jimboomba, where the family often stayed.
  2. [4]
    The complainant said that when she and her family stayed at the appellant’s house, she would sleep in a room in which there were bunk beds, and she would sleep on the bottom bunk.  She said that the appellant would play practical jokes and games with her, but as time went on, he began to tickle her and the tickling then changed to sexual assaults, by the appellant “putting his fingers inside me or on the outside, sort of, of my vagina.”  She described the first time in which the appellant touched her vagina, when she was asleep on the bottom bunk in that room.  She believed that at the time she was about 11 years old.  After that occasion, the touching became “sort of regular that he would come into my room and – do that.”  The appellant told her not to tell anyone of this conduct, and it became a regular occurrence that he would come into her room, put his hand inside her underpants and touch her on the outside of her vagina.
  3. [5]
    The complainant said that this conduct changed to the appellant actually inserting his finger inside her vagina.  Again, this was described as a development which occurred during the period when her family was staying at the appellant’s house, approximately every fortnight, before the family moved from New South Wales to Queensland.  The incidents the subject of counts 2 and 3 were related by that evidence.  The complainant said that she could recall saying “no” and “don’t”, or similar things to show that she was not agreeing to the conduct.  Sometimes, she said, she would say things like “is that Mum?”, causing the appellant to desist and leave the room, although usually he then returned.
  4. [6]
    Count 4 was the subject of evidence of a particular occasion, when she was sleeping in the dining room at the appellant’s Jimboomba house.  She said she awoke to the presence of the appellant on top of her.  She was sleeping on her stomach, and he pushed her shorts and underwear to one side, and penetrated her vagina with his penis, as he put one of his hands over her mouth.  The complainant recalled “feeling really wet” after he had finished, and going to the bathroom to clean herself of blood mixed in with fluid.  She said that she could remember this occurring at a time which was well before her fourteenth birthday.
  5. [7]
    The complainant said that from that time on, when her family stayed at the appellant’s house, the appellant would have sexual intercourse with her.  She said that this occurred until she was aged 17 or 18 years.
  6. [8]
    Count 5 was an occasion, described in the complainant’s evidence, when the appellant raped her with his penis, at a time when she was menstruating.  This was another offence committed at the appellant’s house.  On this charge, the judge was satisfied that the alternative charge of unlawful carnal knowledge of a child under the age of 16 years was proved, but was not satisfied that the complainant did not consent to that assault.[5]
  7. [9]
    In respect of count 6, the complainant gave evidence of having sexual intercourse with the appellant when after a soccer match on a weekend, she went with the appellant to his place of work.  She described how access to the work premises was obtained, and the clothing worn by the appellant on that occasion.  There was evidence from the manager of the business which was conducted from this place, that the appellant had keys for after hours access to the premises.  The judge convicted the appellant of this count, which alleged unlawful carnal knowledge with a child under the age of 16 years, who was under his care.
  8. [10]
    The other offence of which the appellant was convicted was charged by count 11.  The complainant’s evidence was that this occurred at a place where she and her family, together with the appellant, went camping in the Gladstone region.  The complainant’s evidence was that they stayed at a house which belonged to the brother of the appellant’s former wife.  The complainant said that she was sleeping in a tent at the property when the appellant arrived and had sexual intercourse with her.  The appellant had an imperfect recollection of that camping trip, but did recall that when staying there, she had a conversation with the appellant about the appellant being caught sleepwalking with a pillow.  This was another conviction of unlawful carnal knowledge of a child under the age of 16 years.
  9. [11]
    The appellant was convicted of count 1, which was maintaining a sexual relationship with the complainant.
  10. [12]
    The appellant was acquitted by the judge of counts 8, 9, 12 and 13.
  11. [13]
    Count 8 was an alleged offence of unlawful carnal knowledge on an occasion when the appellant was driving the complainant to her work at a certain food outlet.  She said that he pulled off the highway onto a service road, and had intercourse with her on the back seat of the car.  She said that there were many episodes of intercourse in the car, but she recalled this specific occasion because the appellant was wearing a “high-vis” shirt, and because when she got to work after that event, there was ejaculate on her underwear which she had to wash before she started her shift.  The complainant’s evidence was that she “would have been 15 on that occasion”.  The trial judge accepted the complainant’s evidence that there were several occasions in which intercourse occurred on a trip when the appellant was driving her to work at this food outlet, but his Honour was unable to conclude, beyond reasonable doubt, that the complainant was under 16 on the occasion the subject of counts, given her evidence that she was still working when she was 16, and the judge inferred, at the same place.[6]
  12. [14]
    Count 9 was described by the complainant as an occasion when the appellant was driving her to her friend’s house, when the appellant pulled over on the side of the road at a place where he did not usually stop, and had intercourse with her.  She said that this occurred between her fifteenth and sixteenth birthdays.  However the judge considered that the complainant was not definite that this incident occurred before her sixteenth birthday, saying at one point “it would have been” before then.  Consequently, he could not be satisfied that the incident occurred when she was aged under 16 years.
  13. [15]
    Count 12 was a charge of rape, on an occasion when the complainant was in a caravan, and awoke to the appellant with his penis in her mouth.  This occurred after the appellant had moved in with his former wife’s parents.  He was living in a caravan on their property, and the complainant’s evidence was that she drove herself to this address.  She was sleeping on the floor of the caravan when the incident was said to have occurred.  She could not recall how old she was then, but thought that she was perhaps aged 16.  She said that this was the first occasion in which the appellant had ejaculated inside her mouth.  She was not asked whether she consented to that conduct.  She gave evidence that she would perform oral sex on the appellant sometimes before intercourse occurred, and did so willingly.  On that evidence, the judge said that he could not be satisfied that the charge of rape had been proved.
  14. [16]
    Count 13 was another charge of rape.  The complainant described an occasion in which the appellant put his penis into her anus.  This was another offence allegedly committed in the caravan.  The complainant’s evidence was that as the appellant did this, she said that she “wasn’t willing to do that”.  The judge considered that the complainant’s evidence fell short of her telling the appellant that she did not want any penetration of her anus.  His Honour accepted the complainant’s evidence that this incident occurred, but found that the appellant stopped trying to penetrate her anus when she said it was painful.  In the circumstances, his Honour was not satisfied that “the complainant did not begrudgingly give consent to that experimentation”.
  15. [17]
    The complainant’s evidence was that the sexual relationship continued after she turned 16 years.  She gave evidence of an occasion, in which there was consensual intercourse (after her sixteenth birthday) which was filmed by the appellant using a handheld video camera.
  16. [18]
    The complainant moved out of home when she finished school aged 17 years.  She moved to live in a garage at a house belonging to an aunt, whom I will call KW.
  17. [19]
    The complainant herself gave evidence of preliminary complaints.  She recalled an occasion when she came home from work, upset with the treatment she was getting from people there, and said to her aunt that the appellant had been molesting and sexually abusing her since she was 14.  She also told to people with whom she worked that the appellant had sexually abused her from the time that she was young.  She told two friends the same thing, without providing any other details than that.  There were preliminary complaints made to three other friends[7] before the complainant approached another friend of hers, who was a police officer.  She communicated with that friend through Facebook messenger, and the conversation was printed and became an exhibit at the trial.
  18. [20]
    The complainant went to the police in January 2018, and engaged in pretext telephone conversations with the appellant in March and July 2018.
  19. [21]
    In the first pretext call, the appellant agreed that there had been sexual activity between them.  However he disagreed with the complainant’s statement that “I think I was only like 14 or something”, saying “I don’t think you were that young”.  She asked him how old she thought she had been, and he said “well I’m not too sure, I think you were only just about 16”.  A little further on in the conversation, she said that “I’m thinking I was 14 or 15”, to which he responded “Oh I didn’t think you were 14, but anyway …”.
  20. [22]
    In the second pretext call, the complainant said that she “would have been like 13 or 14”, to which he responded “I don’t know if it was back that far”.  She repeatedly said to him that she was around 13 or 14, or even 15 at the time and he responded that he could not recall exactly when their relationship had started.  He was adamant that she was not aged 13 at that time.  He did not agree that it probably commenced when she was aged under 16 years.  The judge noted in his reasons that at no stage during the pretext calls did the appellant state, as he testified at the trial, that there were only three occasions of sexual activity with the complainant, and after she turned 16.[8]
  21. [23]
    During the time of their relationship, her mother was in a relationship with the appellant which did not end until 2014.  The mother’s separation from the appellant was acrimonious.  The complainant described her mother as then being suicidal, and the appellant acting cruelly towards her.  The appellant was trying to evict the mother from his house, and the complainant agreed in cross-examination that she was aware of these developments.  Those events were the subject of a submission to the judge that she was motivated to lie about the alleged offences, because of her sympathy for her mother at his mistreatment of her.
  22. [24]
    In cross-examination, she accepted that although she first went to police about these offences in January 2018, she did not sign her police statement until October 2018.  She accepted that she added details to her version of events over that 10 month period.
  23. [25]
    She rejected the suggestion in cross-examination that the sexual activity between them commenced only after she turned 16, and that she initiated that activity.
  24. [26]
    The complainant’s younger brother, whom the judge called in his judgment BJS, gave evidence that his mother began a relationship with the appellant when he was in grade one, in around 2001.  He recalled the family going to stay at the appellant’s house at Jimboomba a few times a month.  He also recalled occasions when the family stayed at the house of the appellant’s former parents-in-law.
  25. [27]
    The complainant’s mother testified that she first met the appellant in 2001, in an online chatroom.  She began to visit the appellant at least every second weekend.  This continued until she and the family moved to Queensland in 2002.  She would bring the complainant to Queensland more often than the boys, who would stay with their father whilst the complainant wanted to be with her.
  26. [28]
    The mother described her relationship with the appellant, and recalled his work.  The mother recalled an occasion when she and the complainant, together with the appellant and the appellant’s children went to Calliope one Easter for a camping trip.  She said that they stayed with the appellant’s former wife’s brother and his wife and family, camping in the backyard of their property.  That evidence was relevant to count 11.
  27. [29]
    The mother said that there was one occasion which had concerned her, which occurred at the appellant’s house at Jimboomba.  One night, she said, she awoke and looked for the appellant but could not find him in the darkness.  She saw the door to the room where the complainant slept was open and she found the appellant in bed with the complainant.  She described what she then did:

“I just lost it and went off at him, got the children up out of bed, the two boys, obviously in the other room in the bunks.  Got them out of bed and headed back home to [where she and her family were then living]”.

  1. [30]
    The mother believed that the complainant was then aged 14 or 15, before adding that “no, she would have been younger … she was probably 13.”  She said that by the time she had reached home, she had received text messages from the appellant that he had been sleepwalking.
  2. [31]
    In cross-examination, she was asked about a fire at a place where the appellant had worked for “probably six months”.  She recalled that the business was closed by the fire in about October 2004.
  3. [32]
    Another of the complainant’s brothers gave evidence.  This witness, whom the judge called DRS, recalled an occasion when he walked down a hallway at the Jimboomba house and saw that the appellant was in bed with the complainant, as a result of which he woke his mother up and the family went home.  He said that he would have been 12 at the time so that the complainant would have been then aged 14 and a half.
  4. [33]
    There were several preliminary complaint witnesses.  A close friend of the complainant, who had known the complainant since they met in grade eight, recalled the complainant trying to relay to her a time when some sexual abuse had happened.  The witness said that the complainant could not remember how old she had been at the time.  She said that the conversation with the complainant could have been three to five years before the trial.  But in cross-examination, she conceded that the conversation with the complainant may have been after the complainant had gone to the police.  Consequently, this was not admissible as evidence of a preliminary complaint.
  5. [34]
    Another school friend of the complainant recalled a conversation with her shortly after they left high school, in which the complainant said that she had been a victim of a sexual assault, and had used the word “rape”.  The complainant told him that she had been sexually assaulted by the appellant, while she was staying at the appellant’s house, but did not provide any further details.
  6. [35]
    Another friend from school recalled a conversation with the complainant, either at the end of 2006 when they left school, or a couple of years afterwards, when the complainant said that she had been sexually abused by the appellant.  The same witness recalled another conversation with the complainant in which she was told of the complainant’s mother seeing her in bed with the appellant.
  7. [36]
    The complainant’s aunt gave evidence that in about 2007 or 2008, after the complainant had come to live with her, there was a conversation in which the complainant came home from work early and was upset.  The complainant told her that the appellant had raped her “a few times”.
  8. [37]
    Evidence was given by the complainant’s husband, who met the complainant at work in around 2007.  He came to know the appellant, when the appellant was still in a relationship with the complainant’s mother.  He gave evidence of a conversation which he had with the complainant at their work place, in around 2007.  He said that the complainant told him and the foreman at the workplace that the appellant had sexually abused her, and that there had been an incident where the complainant’s mother had found the appellant in her bed.
  9. [38]
    The foreman gave evidence that he first met the complainant in 2007 or 2008.  He recalled an occasion when the complainant told him about things which had happened between her and the appellant.  The witness said that he asked the complainant how old she was at the time, and was told that she was 15.  He also recalled being told by her of an incident when the complainant’s mother found the appellant with the complainant, and was told by the appellant that he had been sleepwalking.
  10. [39]
    Another friend, who met the complainant in 2007, recalled there were occasions when the complainant would tell her things of what had happened between her and the appellant.  She said that she was told these things “… probably in 2008”.  This witness said that the complainant had expressed concern about a video recording of her that the appellant may have kept.
  11. [40]
    Another friend, who had known the complainant from when she was aged around six and the complainant was eight years old, recalled a conversation with the complainant after the complainant’s eighteenth birthday.  The witness said that the complainant “shared – she didn’t really go into much detail, but she did say that there was some sexual abuse” by the appellant and that “over the years, she has told me and divulged more information.”
  12. [41]
    I have mentioned some of the admissions which were tendered in the prosecution case.  Other admissions which were made included that the complainant and her mother, together with the appellant and his children, went to Calliope in March 2005, and that the mother went by herself to New South Wales to visit a friend at the beginning of 2006 (as the mother also testified).  It was also admitted that the complainant did not live with her mother after she received her probationary driver’s licence when she was about 17 years old.
  13. [42]
    The appellant gave evidence.  He said that he met the complainant’s mother in person at the end of 2001.  He said that his relationship with the mother became a sexual one, but that his contact with her was less frequent before she moved to Queensland.
  14. [43]
    He was asked about his relationship with the complainant.  He described a playful but non-sexual relationship with her until the end of 2005 (which was about five months after the complainant turned 16).  He said the first sexual contact was instigated by the complainant, and it involved oral sex.  He said that the incident had “just happened”, and when asked to explain how it had happened, said “I really don’t know to be honest with you.  Because I stated to her, ‘you understand what you’re after?’.”
  15. [44]
    He said that there was a second incident, where sexual intercourse took place in January 2006 at a time when the complainant’s mother had gone away for two weeks.  He described a third and final sexual incident between them as another occasion of sexual intercourse, which he said took place at the address of his former wife’s parents.  On that occasion, he said, he attempted to record their sexual activity on a video camera.
  16. [45]
    He denied having any sexual activity with the complainant when she was under the age of 16.

The unreasonable verdicts ground

  1. [46]
    The appellant was tried by a judge alone, pursuant to s 615C of the Criminal Code (Qld), which is as follows:

615C Judge’s verdict and judgment

  1. (1)
    In a trial by a judge sitting without a jury—
  1. (a)
    the judge may make any findings and give any verdict that a jury could have made or given if the trial had been before a jury; and
  1. (b)
    any finding or verdict of the judge has, for all purposes, the same effect as a finding or verdict of a jury.
  1. (2)
    Without limiting subsection (1), chapter 67 applies with all necessary changes in relation to a person to be tried, being tried, or tried by a judge sitting without a jury in the same way as it applies to persons tried by a judge sitting with a jury.
  1. (3)
    The judgment of the judge in a trial by a judge sitting without a jury must include the principles of law that he or she has applied and the findings of fact on which he or she has relied.
  1. (4)
    The validity of the proceeding is not affected by a trial judge’s failure to comply with subsection (3).”
  1. [47]
    The application of chapter 67 of the Code requires this Court to determine an appeal against conviction, according to the grounds of appeal prescribed by s 666E(1).
  2. [48]
    In Filippou v The Queen,[9] the High Court explained the application of the common form of criminal appeal provisions to a trial by a judge alone.  French CJ, Bell, Keane and Nettle JJ there said:[10]

“[9] As was also explained in Fleming, perforce of s 133 of the Criminal Procedure Act, each of the three limbs of s 6(1) of the Criminal Appeal Act is capable of application to the verdict of a judge alone. For the purposes of the first limb, the question is whether, upon the evidence on which the judge acted, or upon which it was open to the judge to act, the judge’s finding of guilt is “unreasonable” or “cannot be supported”. For the purposes of the second limb, the question is whether the judge has erred in law in the sense of a departure from trial according to law. Under the third limb, the question is whether for any other reason there has been a miscarriage of justice.

[11] Beginning with the first limb of s 6(1) of the Criminal Appeal Act, it is clear from the terms of s 133(1) of the Criminal Procedure Act that the effect of the latter provision is to equate a judge’s finding of guilt to a jury’s finding of guilt “for all purposes”. It follows from the natural and ordinary meaning of the words of s 133(1) that, for the purposes of an appeal against conviction under s 5 of the Criminal Appeal Act, a judge’s finding of guilt is to be treated as if it were the same as a jury’s finding of guilt.

[12] Authority makes plain that a jury’s finding of guilt is not to be disturbed unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice. It follows perforce of s 133(1) of the Criminal Procedure Act that, in the case of an appeal against a judge’s finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice. It is, however, to be borne steadily in mind that, as with a jury’s verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced. To adopt and adapt the language of M v The Queen:

“It is only where a [judge’s] advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred … If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the [judge], there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.””

(Footnotes omitted.)

  1. [49]
    In his separate judgment in Filippou, Gageler J said:[11]

[82] Under the first limb, which refers to the ground that a verdict “is unreasonable, or cannot be supported, having regard to the evidence”, a trial judge’s ultimate finding of guilt must be set aside on the same principle as a jury’s verdict of guilt must be set aside. That is to occur if the Court of Criminal Appeal concludes on the whole of the evidence that it was not open to the relevant tribunal of fact, whether it be a jury or a trial judge, to be satisfied beyond reasonable doubt that the accused was guilty. The Court of Criminal Appeal will conclude that it was not open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty if its own review of the evidence leads it to have a reasonable doubt that the accused was guilty, unless the tribunal’s advantage in seeing and hearing the evidence is capable of resolving that doubt.

[83] Irrespective of whether it is applied in an appeal against conviction following a jury trial or in an appeal against conviction following a trial by judge alone, the question under the first limb is always whether the ultimate finding of guilt was one which was open to the tribunal of fact on the whole of the evidence.”

(Footnotes omitted.)

  1. [50]
    The appellant’s argument contends that the judge erred in several findings of fact.  The judge is said to have erred in finding that the conduct which was charged did occur, and that the complainant was aged under 16 years when any sexual conduct between the complainant and the appellant occurred.  However, to succeed on this first ground of appeal, the appellant must go further, and demonstrate that those factual findings, which were essential to the verdicts, were not findings which were open on the evidence.[12]  As this Court recently affirmed in R v Kelly,[13] in an appeal upon the ground that the verdict is unreasonable or cannot be supported having regard to the evidence, from a judge alone trial, the court must undertake an independent examination of the whole of the evidence at the trial and decide whether it was open to the judge to be satisfied beyond reasonable doubt of the appellant’s guilt, taking into account any advantage of the trial judge in seeing and hearing the evidence at the trial.
  2. [51]
    The proof of the prosecution case was entirely dependent upon the evidence of the complainant.  Her evidence was contradicted by the evidence of the appellant.  That did not impose upon the appellant the responsibility of proving his innocence.  However, the fact that contradictory evidence was given by an appellant does not enhance a submission that the verdicts were unreasonable, as this Court has recently confirmed.  In R v BDM,[14] the Court (McMurdo JA, Boddice J and Rafter AJ) said:

“It is one thing to recognise that an accused might enhance the prospects of an acquittal by giving evidence which contradicts the prosecution case. It is another thing to suppose that when an accused does give that evidence, the degree of probative force which is required of the prosecution evidence is in some way increased. If the prosecution evidence makes it open to the jury to convict, that will remain the position notwithstanding the fact the accused has given evidence, which added no additional facts but simply contradicted the prosecution case.”[15]

The appellant’s evidence here did no more than contradict the complainant’s evidence.

  1. [52]
    I go then to the appellant’s submissions which challenge the credibility of the complainant.  The first of them is that the complainant was inconsistent as to her age when she said the offending started.  In evidence in chief, she said that she believed that she was about 11 years old at the time and was still in grade seven.  However, she accepted in cross-examination that she told police that it was when she was 13 years old.  That was certainly a matter to be considered by the judge in assessing her credibility, as he recognised.
  2. [53]
    It is submitted that the complainant added details in her testimony that had not been previously mentioned.  One of these was that during evidence in chief, she said that she noticed some blood after the first occasion on which she was penetrated with a finger, but under cross-examination, the complainant accepted that she had not said that to police.
  3. [54]
    She accepted that until giving evidence in chief, she had not said, about the occasion in which there was intercourse while her mother was away, that the appellant had made a comment about her weight.  It is submitted that this was an embellishment of her evidence, which was designed to elicit a dislike by the judge for the appellant.
  4. [55]
    The appellant submits that the complainant was demonstrably wrong in her account concerning her mother going away.  Initially, the complainant said that it was before her sixteenth birthday but once challenged in cross-examination, she accepted that it was possibly in January 2006 (after she turned 16).
  5. [56]
    These points, whilst each being a matter for consideration by the judge, in aggregate did not provide a basis for this Court to conclude that the judge was required to reject her evidence.  In the context of a lengthy and detailed account of events occurring over many years, they were imperfections in her recollection which are unremarkable, and together provide no cause for concern that the judge misused his opportunity to assess the complainant’s credibility.
  6. [57]
    Nor is there a reason for concern from the fact that the complainant did not come up to proof in respect of counts 7 and 10 (which were discontinued at the close of the prosecution case) or from the fact that many months passed in 2018 from her initial complaint to police until the signing of her police statement.
  7. [58]
    His Honour acquitted the appellant on some charges, but not because of doubts about her credibility.
  8. [59]
    The appellant submits that the complainant’s account was doubtful for the fact that the complainant and the appellant interacted for years after the alleged offending had occurred.  The complainant spent time at the appellant’s house, obtained the appellant’s assistance to get a car loan, invited the appellant to dinner when she moved out of home and to her eighteenth birthday celebrations, as well as celebrating her twenty-first birthday at his house and spending Christmas day in his company.  It is pointed out that the complainant bought from the appellant a car in which some uncharged acts of sexual offending were said to have occurred.
  9. [60]
    However, that argument needs to be seen in the context of the entire history of the relationship, as the complainant described it.  The complainant spent much of her childhood years, under his control in a household where he was in a de facto relationship with her mother.  The sexual relationship with the complainant continued into the complainant’s late teens.  Abhorrent though the relationship was, it could be understood how the relationship was accepted by the complainant.  And after her sexual relationship with the appellant ended, the relationship between him and the complainant’s mother continued, explaining her reluctance to divulge what had occurred during her childhood.
  10. [61]
    That situation changed when the relationship between the mother and the appellant ended, in particularly acrimonious circumstances which involved the mother being evicted from her house and members of her family being unable to recover some of their property.  It is submitted that this circumstance provided evidence of a motive of the complainant to lie about what had happened during her childhood.  However, an alternative view, which the judge held, was the dispute over property and the eviction of her mother was the catalyst for the complainant to seek advice from her friend who was the police officer, and then to go to police with a truthful complaint.
  11. [62]
    It is submitted that the pretext calls supported the appellant’s case more than the prosecution case.  In my opinion, the calls did not provide significant support for the prosecution case.  There was no unequivocal admission of offending before the complainant turned 16.  The appellant might have been more definite in his rejection of the possibility that this occurred, but that is not something which added to the weight of the prosecution case.  On the other hand, the fact that the appellant disputed some of the suggestions put to him in the pretext calls did not weaken the prosecution case.
  12. [63]
    The preliminary complaint evidence did not provide much support for the complainant’s credibility, but nor did it detract from it.  For the most part the complaints which were made were more general than the complainant’s testimony, but that is not unusual in such cases.
  13. [64]
    It is strongly argued that the appellant’s evidence should have been accepted by the trial judge.  It is contended that his evidence was internally consistent and logical, and was consistent with what he said in the two pretext calls.
  14. [65]
    The judge found the appellant to be a “poor witness who I simply cannot believe”,[16] describing the appellant as “arrogant and dogmatic”.[17]  The judge was certainly forceful in his rejection of the appellant’s evidence.  His Honour regarded the appellant’s description of how the first incident (on the appellant’s version) was initiated as being “simply implausible” and something which defied logic and common sense.[18]  Still, it was open to his Honour to regard that piece of evidence as something which was very unlikely to be true.  Similarly, his Honour was entitled to reject the appellant’s evidence which played down his relationship with the complainant’s mother.[19]  After further criticisms of the appellant’s evidence, the judge said at the end of the day, he could not accept his evidence, and that the evidence did not leave him “in a question of reasonable doubt about the allegations.”[20]  The judge said that he would therefore set the appellant’s evidence to one side, and went back to the prosecution evidence to see if the charges could be proved to the required standard.[21]
  15. [66]
    The consistency between the appellant’s evidence and the pretext calls was capable of two interpretations.  One is that which is advanced in the appellant’s argument, in which it is said that the appellant has always been consistent in his account.  The other is that the appellant fashioned his testimony so that it would coincide with what he said in the pretext calls.  It was open to the judge to take the latter view.
  16. [67]
    Overall, it is not demonstrated that the judge misused his opportunity, from having heard and seen the evidence being given, of assessing the credibility of the key witnesses, namely the complainant and the appellant.  The assessment by this Court of the evidence must take into account that advantage.
  17. [68]
    As the judge recognised, there were aspects of the complainant’s evidence in which her memory was apparently poor and her version was imprecise.  The judge described her memory as patchy, in that she could clearly remember some events better than others.[22]  He recognised the inconsistencies between her evidence in court, and her police statement and her evidence at the committal hearing, as well as her bad memory in respect of where she was, and how old she was, when the offending began.
  18. [69]
    Upon my review of the evidence, however, those shortcomings in her testimony did not require the judge to be left in doubt as to the evidence which was essential to prove the charges on which the appellant was convicted.  It was open to the judge to be satisfied beyond reasonable doubt that the appellant was guilty of those charges.

The Longman direction

  1. [70]
    The appellant submits that this was a case which required the judge to direct himself according to Longman v The Queen, because of the significant delay in the making of a complaint to police, of the order of 10 to 15 years, by which the appellant was prejudiced by losing any forensic advantage that may have been available had the complaint been made promptly.  It is said that medical evidence, DNA evidence on bedding or the complainant’s clothing, evidence regarding the out of hours access to the appellant’s workplace and perhaps other matters could have been investigated.  Consequently, it is submitted, this was a suitable case for the Court to direct itself that it would be dangerous to convict the appellant on the complainant’s uncorroborated evidence.
  2. [71]
    There are two reasons for rejecting this submission.  The first is that, as it happens, the judge did direct himself according to Longman v The Queen.  The judge said this in his reasons:

“[207] There is no question there has been significant delay in the complainant bringing the allegations to the attention of the authorities. As a consequence there has been substantial unfairness caused to the accused. I therefore direct myself in accordance with Longman v The Queen (1989) 168 CLR 79, in that it would be dangerous to convict the accused on the evidence of the complainant alone, unless, after scrutinizing with great care, considering the circumstances relevant to its evaluation, I am satisfied beyond reasonable doubt of its truth and accuracy.”

  1. [72]
    The other reason is that the submission overlooks s 132BA of the Evidence Act 1977 (Qld), which was inserted by the Criminal Code (Child Sexual Offences Reform) and other Legislation Amendment Act 2020 (Qld).  That provision commenced on the day after its assent, which occurred on 14 September 2020.  It applies to a trial which commenced on or after 15 September 2020.  This trial commenced on 21 September 2020.
  2. [73]
    Section 132BA applies to proceedings where there is a jury,[23] but also to a trial by judge alone, by reason of s 615B of the Criminal Code.  On the judge’s own initiative, or on the application of a party, a trial judge may give a direction if satisfied that the defendant has suffered a significant forensic disadvantage because of the effects of delay.[24]  In giving the direction, the judge must direct the jury (or the judge, if sitting without a jury) of the nature of the disadvantage to the defendant and the need to take it into account when considering the evidence.[25]  However the judge must not warn or in any way suggest that it would be dangerous or unsafe to convict or that the complainant’s evidence should be scrutinised with great care.[26]

A Robinson direction

  1. [74]
    The judge referred to a written submission for the appellant which listed a number of unsatisfactory aspects of the complainant’s evidence, together requiring the judge to direct himself in accordance with Robinson v The Queen.  The judge accepted that he should do so, as a consequence of aspects of her evidence which included the following:
    1. (a)
      her evidence was uncorroborated;
    2. (b)
      the complainant did not provide particulars when making a preliminary complaint;
    3. (c)
      the complainant was motivated by property issues;
    4. (d)
      the complainant had failed to come up to proof on some counts on the indictment;
    5. (e)
      the complainant added details that had not otherwise been mentioned previously to police;
    6. (f)
      the complainant was never threatened with violence to ensure her silence;
    7. (g)
      her initial complaint when speaking a police officer, albeit a friend, was mainly in relation to her property;
    8. (h)
      the complainant continued in a harmonious relationship with the appellant.[27]
  2. [75]
    It is not suggested that there was any consideration beyond those which the judge listed which was relevant to a direction in accordance with Robinson.  However, there is a complaint that the judge should have found each of those aspects to be a proven fact.  That submission could not be accepted.  Some of those matters, namely those in (a), (d), (e), (f) and (to an extent) the matter in (h) were accepted by the judge, but he was not required to do so on the others.
  3. [76]
    The judge directed himself that “as a result of the unsatisfactory aspects of the complainant’s evidence as highlighted by the defence”, he should “scrutinize the complainant’s evidence with great care, and should only convict the accused of one or more of the charges if … satisfied of the complainant’s evidence in respect of a particular charge beyond reasonable doubt.”[28]
  4. [77]
    It is suggested that the judge gave no consideration to the fact that “aspects of the complainant’s evidence” were not corroborated.  However, it was clear to all at the trial that, with the possible exception of evidence from the complainant’s mother and brother of seeing the appellant in bed with the complainant, that her evidence was uncorroborated.

Markuleski

  1. [78]
    In his judgment, his Honour directed himself as follows:

“Separate charges have been laid against the accused, and I must consider each charge separately. I have directed myself in accordance with R v Markuleski (2001) 52 NSWLR 82, that if I have a reasonable doubt about the complainant’s credibility and/or reliability in respect of one or more counts, I should have regard to that generally when I consider the other counts.”[29]

  1. [79]
    There is no reason to suppose that the judge did not follow this direction.  As I have explained, on those counts for which the judge did not accept the entirety of the prosecution case, the reason was not a concern about the complainant’s credibility.  It was a doubt which resulted from a relative generality or an ambiguity in the complainant’s testimony.  In no case, was the judge obliged to reject the complainant’s evidence on one or more other counts because of those shortcomings in the charges upon which the appellant was acquitted or convicted of a lesser offence.

R v UC

  1. [80]
    At the commencement of the appellant’s outline of argument, it is contended that the judge failed to follow the Longman, Robinson, Markuleski “and UC directions properly or at all.”  However, as to R vUC, the point was taken no further, either in the outline of argument or in the extensive oral submissions by counsel for the appellant.  The reference to that case indicated an argument as to a deficiency in the judge’s reasoning by reference to uncharged acts.  However there is nothing which indicates an error by the judge in that respect.

Adequacy of reasons

  1. [81]
    In the course of his oral argument, counsel for the appellant submitted that the judge did not give adequate reasons, by a judgment which ran to some 75 pages.
  2. [82]
    In no respect was the judge’s reasoning not sufficiently revealed.  One other matter, however, about the reasons should be mentioned.  In the final paragraph of the judgment, when expressing his ultimate findings, the judge said that he was satisfied that the appellant maintained an unlawful relationship of a sexual nature, that included not only the specific unlawful sexual acts in counts 2, 3, 4, 5, 6, 8 and 11, but also numerous uncharged acts.  That was an obvious slip, in that the judge had earlier reasoned that he should acquit on count 8.  No miscarriage of justice could be said to result from that mistake.

The amendment of the indictment

  1. [83]
    Immediately before the prosecution case was closed on the third day of the trial, the prosecutor sought leave to amend counts 1 through 4 so as to change the commencement date of the period in which those offences were committed from 31 December 2002 to 12 August 2001.  The prosecutor explained that this was because of the complainant’s evidence that “some things began to happen soon after she met the defendant”.  When the judge asked defence counsel (who was not the appellant’s counsel in this Court) for his attitude to the amendment, counsel said:

“Your Honour, this is a situation in the way in which I’ve conducted the defence that I don’t think I can sensibly oppose.”

  1. [84]
    The judge then said that in the circumstances, he was satisfied that there was no prejudice to the defendant and leave was given to amend the indictment.
  2. [85]
    The appellant now submits that there was a miscarriage of justice by that amendment.  It is said that the amendment was made so late that the appellant was not in a position to meet that amended case at the trial.  Immediately after the amendment was made, the appellant gave his evidence, it is said without adequate time for him and his then legal representatives to consider what should be done to meet a new case.
  3. [86]
    The appellant says that with proper notice of the amendments, he would have called a witness, who was a woman with whom he was in a relationship within that extended period, whom I will call JH.  The evidence which JH might have given is set out in an affidavit of Mr Reardon, the appellant’s present solicitor.[30]
  4. [87]
    Mr Reardon was telephoned by JH on 24 August 2021, having been provided with his contact details by the appellant’s sister.  JH told Mr Reardon that:
    1. (a)
      she and the appellant met in “mid to late winter of 2002”;
    2. (b)
      she recalled attending several soccer games in which the appellant was the referee and netball games in which the appellant’s daughter was involved, sports which were played in a season finishing in late August to mid September;
    3. (c)
      on 19 October 2002, JH and the appellant attended a 21st birthday party together and they were “a couple” at that time;
    4. (d)
      in late December 2002, JH and the appellant went camping with friends;
    5. (e)
      on New Year’s Day 2003, JH left the camping group following a disagreement with the appellant;
    6. (f)
      about a week later, they decided that they were incompatible and their relationship ended;
    7. (g)
      JH considered that during her relationship with the appellant, their relationship was “exclusive”;
    8. (h)
      the appellant spent “considerable time” at JH’s home;
    9. (i)
      to her knowledge, when the appellant was not with her at her place, he was involved in sport or was at his place with JH’s children or the appellant’s children;
    10. (j)
      JH and the appellant made a number of trips together, one of which was to Coffs Harbour;
    11. (k)
      the appellant would regularly have his two children in his care.
  5. [88]
    Had the period of the offending in counts 1 to 4 always been charged as commencing in August 2001, this evidence would not be described as fresh evidence.  It would have been evidence which with reasonable diligence could have been produced by the appellant at his trial.  However in this case the evidence was made relevant by the amendments to the indictment.
  6. [89]
    On its face, the evidence which could have been given by JH has no evident implausibility, and it would have been relevant had it been tendered at the trial.  However, there was no miscarriage of justice from the amendments to counts 1 to 4.
  7. [90]
    The appellant’s evidence in chief was that he met the complainant’s mother online in the middle of July 2001, and that she came to his house towards the end of that year.  When he first met her, her children were not with her.  He met the children when the complainant’s family (and the mother’s then husband) “turned up” at the appellant’s house.  He said that his relationship with the complainant’s mother subsequently became a sexual one, in which she came to stay with him at times, and on some occasions with some of her children.  When asked how frequently the complainant’s mother stayed with him he said:

“It wasn’t – wasn’t frequent, as such, from the very – from when I first met her.  I think maybe towards the middle or end of 2002 did it become really frequent.”

The appellant’s evidence was that these weekends stays were not as frequent when the complainant and her family were living in New South Wales as they were after she moved to Queensland.

  1. [91]
    As earlier noted, there was a formal admission that the complainant’s family moved to Queensland in the middle of 2002.
  2. [92]
    The evidence in chief which the appellant gave is irreconcilable with the evidence which he now says he could have called from JH.  Upon his evidence, he was in a sexual relationship with the complainant’s mother, involving regular weekend stays by her and some of her children at his house, from a time before that family’s move to Queensland but frequently at least from the middle of 2002.  Quite possibly, JH is mistaken about the year in which she had her relationship with the appellant.  What presently matters is that the appellant gave sworn evidence to the contrary of what would have been her evidence, and he cannot now claim that there was a miscarriage of justice from not being able to call her in his case.  This ground of appeal fails.

Further evidence on count 11

  1. [93]
    The appellant says that there was a miscarriage of justice by evidence not being called from a witness, whom I will call BS, who was the appellant’s former brother-in-law and the owner of the property at which count 11 was alleged to have occurred.
  2. [94]
    Another affidavit by Mr Reardon[31] exhibits a copy of a witness statement made by Senior Constable Bicanic, who was an investigating officer.  His statement formed part of the prosecution brief.  The police officer referred to making contact with a number of persons, from whom statements were to be obtained, but who were either not willing to provide a statement to police, not willing to make contact with him or whose evidence (he considered) was not relevant to the police investigation.  Those persons included BS.  In his statement, Mr Bicanic referred to information from the complainant’s mother that the complainant’s family, together with the appellant and his two children, made a trip to a property at a certain address in Calliope in Easter 2005.  The complainant’s mother had referred to a tent where she and others had slept on the property.
  3. [95]
    Filed in this Court,[32] is an affidavit by BS sworn on 6 July 2021.  BS says that during his ownership of this property, which was from January 2003 to the end of July 2005, he recalls the appellant attending the property on only one occasion, which was a Christmas Day.  He recalls that the appellant had broken his collar bone and he had been taken by ambulance to Gladstone Hospital for treatment.  He does not recall the year in which this occurred.  But he says that this was the only occasion in which he can recall the appellant staying at the property with or without the complainant’s family.  On the occasion he can recall, the appellant was there without the complainant’s family, and BS says that he would recall any occasion on which the complainant’s family had stayed there “as I disliked them and believe I would remember whether they were there because of this I would not have liked it if they were there.”  BS says that he recalls being telephoned by a police officer investigating these matters, and telling the officer that he did not think a statement from him was warranted as he did not have a recollection of the complainant’s family ever being at his property.
  4. [96]
    The appellant’s argument is that police should have taken a statement from him, and had that occurred, there would have been evidence at the trial from BS which would have contradicted the complainant’s evidence and that of others who recalled the camping trip to this property.
  5. [97]
    At the trial, there was no challenge to the evidence that the family had gone to the property and camped there.  That is unsurprising, when it is recalled that there was a formal admission by the appellant that the complainant and her mother, together with the appellant and his two children, went to Calliope in March 2005.
  6. [98]
    Moreover, the affidavit of BS does not provide compelling evidence that the appellant was mistaken in making that admission.  BS refers to no records which would prove that the complainant and her family were not there.  This ground of appeal fails.

Evidence of taxation records

  1. [99]
    The appellant has caused his solicitors and his sister to obtain records of his employment history from the Australian Taxation Office.  Those records show that the appellant was employed by the business which operated from the premises where count 6 was committed, from 12 August 2003 until early 2005.  The records show much less income from the appellant’s employment in that business in the six months to the end of 2004, than in the period to 30 June 2004.  This is consistent with the evidence given at the trial by the general manager of the business that there was a fire at the premises in October 2004.  In summary, the records prove that the appellant worked there from August 2003 until at least the time of the fire.  The evidence could have been of no consequence to count 6, which was alleged to have been committed at some time from the beginning of 2003 and before the complainant turned 16 in July 2005.
  2. [100]
    In some way, this evidence is said to be relevant also to the complaint of an unfairness from the late amendment to the indictment.  However the evidence of his employment history, which shows that he worked at certain places from 1 July 2001, would have had no probative value to any issue at the trial.

Conclusion and order

  1. [101]
    None of the grounds of appeal should be accepted.  I would order that the appeal be dismissed.
  2. [102]
    MULLINS JA:  I agree with McMurdo JA.
  3. [103]
    DAUBNEY J:  I agree with McMurdo JA.

Footnotes

[1](1989) 168 CLR 79.

[2](1999) 197 CLR 162.

[3](2001) 52 NSWLR 82.

[4][2008] QCA 194.

[5]Judgment [239].

[6]Judgment [244].

[7]Judgment [62]-[63].

[8]Judgment [227].

[9](2015) 256 CLR 47; [2015] HCA 29 (“Filippou”).

[10](2015) 256 CLR 47 at 53-54; [2015] HCA 29 at [9], [11], [12].

[11](2015) 256 CLR 47 at 75-76; [2015] HCA 29 at [82], [83].

[12]M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13.

[13][2021] QCA 134 [3]-[9].

[14][2021] QCA 108 at [158], citing Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45 at [60]-[63] and [120] and [125].

[15]See also R v Miller [2021] QCA 126 at [23] (Sofronoff P, Morrison JA and Ryan J).

[16]Judgment [218].

[17]Judgment [218].

[18]Judgment [218].

[19]Judgment [219].

[20]Judgment [228].

[21]Judgement [228].

[22]Judgment [210].

[23]s 132BA(1).

[24]s 132BA(2).

[25]s 132BA(4)(a)(i) and (ii).

[26]s 132BA(4)(b)(i) and (ii).

[27]Judgment [208].

[28]Judgment [208].

[29]Judgment [206].

[30]Filed 13 October 2021.

[31]Filed 3 November 2021.

[32]On 13 October 2021.

Close

Editorial Notes

  • Published Case Name:

    R v CR

  • Shortened Case Name:

    R v CR

  • MNC:

    [2021] QCA 291

  • Court:

    QCA

  • Judge(s):

    McMurdo JA, Mullins JA, Daubney J

  • Date:

    23 Dec 2021

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2020] QDC 26923 Oct 2020Convicted of several sexual offences against child (and acquitted of others) after trial before Chowdhury DCJ sitting alone (further counts discontinued at close of prosecution case); proof of guilt depended entirely on credibility and reliability of complainant; accused gave evidence contradicting complainant’s evidence; accused’s evidence consistent with statements in pretext calls with complainant.
Appeal Determined (QCA)[2021] QCA 29123 Dec 2021Appeal against convictions dismissed; trial judge’s guilty verdicts not unreasonable; complaints concerning Longman, Robinson, Markuleski and R v UC [2008] QCA 194 directions not made out; trial judge’s reasons not inadequate and certain error therein an obvious slip; no miscarriage of justice resulted from amendment of dates on indictment during trial; complaints referring to further evidence dismissed: McMurdo JA, Mullins JA, Daubney J.

Appeal Status

Appeal Determined (QCA)

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