R v KAY[2021] QCA 5

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I have read the reasons of Bradley J and agree with those reasons and the order his Honour proposes.
2. [2]
   PHILIPPIDES JA:  I agree with the reasons for judgment of Bradley J and the order his Honour proposes.
3. [3]
   BRADLEY J:  On 27 May 2019, the appellant was convicted on 20 counts of offending against his daughter, committed over an eight year period between 10 May 2003 and 9 May 2011.

The grounds of appeal

4. [4]
   The appellant initiated this appeal on the ground that the convictions were unreasonable or could not be supported having regard to the evidence.  By the hearing of the appeal, he had abandoned this ground and, instead, raised new two grounds.
5. [5]
   The first is that a miscarriage of justice occurred because the evidence was incorrectly dealt with in the trial.  The second is that such a miscarriage occurred because the learned trial judge did not direct the jury appropriately in terms of the principles derived from the decisions in Longman v The Queen^[1] and Robinson v The Queen.^[2]

Overview of the trial

6. [6]
   The appellant was tried over five days in May 2019.  The complainant commenced her evidence at 3.01 pm on the first day.  She was excused at 4.14 pm on the second day, having been under cross-examination from 11.08 am that morning.^[3]  She testified to a history of sexual abuse, assault, rape, violence and threats of violence while in the appellant’s care.  She said the offending conduct commenced in 2003, when at age 9 she came to live with the appellant as the only child in his household.  Prior to that time, she had lived with her mother and had little contact with the appellant.  Her evidence was that the offending continued until 2012.  By then, she was 17 years of age.  It was a harrowing story of regular, vile, cowardly and degrading conduct on the part of the appellant.  The complainant had first reported the offending to the authorities in 2017, when she was 23 and had herself become a mother.
7. [7]
   Over the third and fourth days of the trial other family members, including her mother, sister, a brother, paternal grandmother and uncle, were called.  Former partners of the appellant also gave evidence.  There was some medical evidence that supported a count of assault occasioning bodily harm and another of unlawful assault occasioning bodily harm whilst armed.
8. [8]
   The indictment presented contained 29 counts.  On the fourth day of the trial, the Crown entered a nolle prosequi in relation to seven counts.  This was on the basis that the complainant’s evidence had not been sufficient to establish them.
9. [9]
   On the final day of the trial, the Crown prosecutor, Mr Needham, and the defence counsel, Mr Kissick, addressed the jury.  The learned trial judge then summed up the evidence and directed the jury as to their deliberations.  The jury retired at 4.02 pm.  They returned and deliberated from 10.00 am on the sixth day, at 2.28 pm asking a question about the effect of the removal of four counts, before retiring again.  At 4.45 pm they returned their verdicts, finding the appellant guilty on 20 of the 22 remaining counts.^[4]
10. [10]
    The most serious convictions were for two counts of rape when the child was 13 or 14.  For each, the learned trial judge sentenced the appellant to six years imprisonment.  There were also three counts of unlawfully maintaining a sexual relationship with a child under 16 years, seven counts of indecent treatment of a child under 12 years who was a lineal descendant, four counts of assault occasioning bodily harm, two counts of assault occasioning bodily harm while armed, one count of deprivation of liberty, and one count of common assault.  These attracted lesser concurrent sentences of imprisonment.
11. [11]
    The effective “head” sentence for all of the appellant’s offending was 12 years imprisonment.  This was the total of the three sentences imposed for the offences of maintaining a sexual relationship with a child.  The complainant was aged between 9 and 11 during the period of the first maintaining count (May 2003 to May 2006), 13 during the period of the second count (January to April 2008), and between 13 and 15 during the period of the third count (April 2008 to May 2009).  The appellant was ordered to serve these sentences cumulatively, perhaps reflecting that the child had endured the offending in that way.  His Honour declared each to be a conviction for a serious violent offence.
12. [12]
    Between the periods of the first and second maintaining offences, the appellant and the complainant lived in New South Wales.  The evidence about the appellant’s conduct in NSW is central to the matters raised in this appeal.  The complainant gave evidence that the appellant’s sexual relationship with her continued over this time and, indeed, changed in nature and severity.  No penile-vaginal intercourse was alleged during the first maintaining period.  The complainant gave evidence it began while she and the appellant were living in NSW and continued when they returned to this State.  As that initial conduct was alleged to have occurred outside Queensland, it was not the subject of any count on the indictment.

First ground of appeal

13. [13]
    The first ground is that evidence given by the complainant’s mother and her sister was incorrectly dealt with in four respects.  The first two respects are that hearsay from each of them was inadmissible and should not have been heard by the jury.  Their hearsay was what the complainant told each of them about the appellant raping her while they were living in NSW.  These were uncharged acts, so reports of them were not preliminary complaints.  The third respect is that the learned trial judge ought to have directed the jury to disregard that evidence.  The fourth is that his Honour ought to have directed the jury that they could use some of the mother’s evidence to the effect that the complainant had recalled the appellant’s offending in dreams.

How the evidence was adduced at the trial

14. [14]
    Before the jury was empanelled, the Crown indicated an intention to lead evidence of uncharged acts.  Referring to a document he proposed to give to the jury, Mr Needham told the court:

“So, your Honour, the document indicates that for the offences of – the various offences of maintaining, there are three, that there will be references to other sexual activity that is captured within those time frame periods.  There will also be three other time frames where sexual offences are alleged that fall outside of those indictment dates.  They are times when the accused and the complainant are said to be interstate, and also at the end of the indictment at times when the complainant is beyond the age of 16.  So the Crown’s seeking to lead evidence of those other sexual offences that occurred outside of the indictment periods as evidence of sexual interest in the complainant.  It also can be read and accepted that if the jury is satisfied that the nature of the sexual activity as described by the complainant continued in New South Wales and then continued when she returned, but that’s also evidence of the habitually [sic] of the relationship as well in the indictment period.”

15. [15]
    In opening the Crown case, Mr Needham handed the jury the foreshadowed document with a brief breakdown of each offence.  He told the jury:

“The complainant is going to be talking about things outside of those offences – offences both sexual and violent.  So you need to focus on those particular offences when coming to your conclusions about guilt or otherwise in this trial.  The other evidence is being led for a specific purpose, and that is to give you an understanding of the relationship between the defendant and the complainant.”

16. [16]
    In outlining the Crown case in a chronological sequence, Mr Needham reached the end of the period for the first maintaining offence.  He then told the jury, speaking of the complainant:

“Now, ladies and gentlemen, she recalls that she moved to New South Wales with the defendant and other members of her family …  She recalls that during this period of time in New South Wales, this kind of offending didn’t stop.  You’re going to hear that she makes an allegation of rape against another person … whilst she’s living in New South Wales.  Now, she will tell you that [the other person] and the defendant were drinking together and when the defendant went asleep, this person … raped her.  And she reported that to the police.  The purpose of that, ladies and gentlemen, is it gives us a point in time in New South Wales.  Because what the complainant says happened after this is that the defendant began to rape her in a penile-vaginal sense following on from that.  You’ll hear that when he found out what [the other person] had done, he raped her.  He was present during the police investigation – the complainant made no complaint against him when she made her complaint about [the other person].  She will tell you why.  But that’s the relevance of that evidence.  Because in that point in time the complainant will tell you that sexual intercourse became the norm between the two of them.”

17. [17]
    Mr Needham called the complainant and adduced her evidence.  This included evidence about assaults and rapes by the appellant while she and the appellant were living in NSW.  No evidence in chief was led from the complainant about her reporting that conduct to her mother or her sister.
18. [18]
    Mr Kissick cross-examined the complainant.  He turned to the subject of her complaint to the NSW police about being raped by the other person while living with the appellant in NSW.  He asked her about speaking to her sister:

“Did you ever tell her that [the appellant] found out and instead of helping you call the police, he raped you too?---Sorry, could you repeat that?

Did you ever tell [your sister] that when [the appellant] – that’s the defendant – he found out.  Instead of helping you or calling the police, he actually raped you, too.  You remember saying that to [your sister]?---No, I never said to [my sister].

You never said that to her?---Not that I remember.

Because it was [the appellant], the defendant, who rang the police, wasn’t it?---Yes, it was.”

19. [19]
    The complainant was not re-examined about this conversation with her sister.
20. [20]
    The complainant’s mother gave the following brief evidence when examined by Mr Needham:

“Has there been a time when [the complainant] has spoken to you about things that had happened between her and her father?---Yeah.  She rang me while I was at work one day.

Okay.  And what did she tell you; just in that conversation?---That when she got raped by [the other person], her dad then did sexual things to her, and then hit her.”

21. [21]
    There was no objection to this evidence at the time.  Mr Kissick cross-examined the complainant’s mother about the date of this conversation, eliciting a positive response to being in about May 2017.  It will be necessary to return to the mother’s cross-examination later in these reasons.
22. [22]
    The complainant’s sister gave evidence in chief that the complainant had messaged her on Facebook and then telephoned her:

“Okay.  I just want to focus on the conversation over the phone, okay?  Can you recall, as best you can, what she told you about what’d happened?---So, obviously, first she messaged me on Facebook and said she had something to tell me.  I read the message and then my phone started ringing so I answered and she was crying.

Just focus on the words, okay.  So just remember as best you can what she said, all right?---Yeah, okay.  She was crying and then she said that she had something to tell me, and I was like, “Yeah, you know, it’s okay.  What’d you want to tell me?” and she said her dad raped her.

Okay.  Did she tell you when that had occurred?---We – we got back more into the discussion and then she said it was the same night she had been raped by another man.  She went to tell him.  He did it that night too.  So - - -

All right.  Did she tell you who that other man was?---Yeah, she did but I – I keep forgetting his name”.

23. [23]
    There was no objection to this evidence at the time.  Mr Kissick cross-examined the sister, firstly about the date of the telephone conversation with the complainant.  The sister agreed with the suggestion it was on 23 May 2017.  He then moved to the following questions:

“When she spoke to you, did she tell you she had been in touch with the police and – or anything like that?---Nup.  No.

And the conversation you had on that night, was that:

The first time that [the appellant] actually raped her was on the same night that she was raped by [the other person].

Is that the words she used or is that your interpretation of it?---Well, she said, after she had told him – her father, that she was raped by [the other person], that’s when he raped her.

Right?---So that’s exactly what she said.

So what you put in your statement was [the complainant] said that after she was raped by this person, [the appellant] found out and that instead of helping her or calling the police, [the appellant] actually raped her too?---Yes.

That’s what she said?---Yes.”

24. [24]
    There was no re-examination on this topic.

How the evidence was used at the trial

25. [25]
    In his address to the jury, Mr Needham referred to this and other evidence of things happening in NSW:

“…We know that she made a complaint, before she went to the [Queensland] police, to both [her sister] and her mother …  In both those complaints, she speaks about the night that – well, she didn’t say the night, but the offence of being raped by the defendant after the offence in New South Wales with [the other person].  She gives that information to those two people. …

You can use that evidence in assessing the consistency of her complaint, but you can see why the event in New South Wales would stick out in her mind as a particular time.  She mentions to some extent that there may have been a penetrative act before that.  She attributes that to the presence, or absence, of blood, but it’s that event in New South Wales, where the kind of simulated acts, or the non-invasive acts, developed beyond that, and it’s that point in time that she attributes it to.”

26. [26]
    After the Crown prosecutor had finished his closing address, in the absence of the jury, Mr Kissick raised the admissibility of the evidence of the mother and sister about the complaint’s reports to them.  He expressed the point in this way:

“Your Honour, this is what you would call a well past the eleventh hour light bulb moment.  As I was listening to my learned friend, conversations about something that happened in New South Wales that don’t constitute an offence cannot be a preliminary complaint, because it’s not about the offence.  So I hadn’t so much as turned my mind to that point until I was just simply listening to my learned friend in his address today.”

27. [27]
    Mr Needham did not dispute the objection.  He accepted “it should not have been led in that way”.  However, he submitted:

“Now, ultimately, there’s no real prejudice caused simply because it was an aspect of cross-examination [of the complainant, the mother and the sister] that was used to an advantage, and if the matter had’ve been cross-examined upon, then my submission would be that I’m entitled to use it for that purpose anyway.  So I don’t think it’s caused significant prejudice, it’s just the manner in which it’s been presented to the jury.”

28. [28]
    Mr Kissick did not submit to the contrary.
29. [29]
    The learned trial judge (with respect, correctly) accepted that the evidence of the mother and the sister about what the complainant had said of events in NSW was not admissible as evidence of a preliminary complaint and should be excluded.^[5]  There was no objection to the complainant’s own evidence of the uncharged rapes in NSW.^[6]  Nor to her evidence, when cross-examined, that she told her sister.  His Honour then engaged with counsel about the consequences for the summing up and for the directions to the jury.
30. [30]
    In these exchanges with counsel, Mr Kissick informed the court he intended to make a submission about the inconsistency between the evidence of the sister about what she said the complainant told her of the events in NSW and aspects of the facts about the reporting to the NSW police.  He explained:

“…an inconsistency, in the sense that she withheld the vital information about how he did, in fact, take it to the police.  That’s – I think that was still – even if it wasn’t preliminary complaint, had we ironed that out beforehand I would have still cross-examined her on that point.  That really, when she spoke to [her sister] she was just saying, ‘He wouldn’t let me go to the police.’  And really there’s a degree of inconsistency, perhaps, in what ultimately really happened.”

31. [31]
    This signalled particular care would be required in directing the jury.  A direction to ignore the excluded evidence of the mother and sister about the complainant’s report of the NSW rape might undermine the defence submission on credit.
32. [32]
    After discussion, his Honour informed counsel that he would limit the preliminary complaint direction to the sister’s evidence about the complainant telling her of one of the charged acts, involving the appellant video recording the complainant with a dog and punching her in the face when she refused to cooperate with his directions.  In particular, his Honour proposed, no preliminary complaint direction would be made about the evidence of the complainant’s mother and none about the sister’s evidence of the report of rape of the complainant by the appellant in NSW.  Mr Kissick raised no objection to this course.  He sought no further direction on the topic.
33. [33]
    After these matters were resolved, Mr Kissick addressed the jury.  He dealt with the evidence of the mother and the sister in this way:

“Now can I just speak about [the other person’s] matter because, ladies and gentlemen, this is the most important part of your deliberation, I would say to you, in this case; she told [her sister] that, when [the other person] raped her, her dad raped her and would not let her, you know, instead of taking her to the police or something – I might find the exact words for you shortly.  You would have been left with some apprehension that dad had just glossed over this rape and just thought; well, if he can do it, I can do it.  What an appalling thing, because he took her to the police, he did not – he questioned her, there is no evidence that she was injured by her father, that is one of those faults in the Prosecution.

He took her to the police.  …”

34. [34]
    Later in his address, Mr Kissick again relied on the evidence of the sister to attack the complainant’s credit.  He did so by offering a comparison between what the sister recalled the complainant to have said and the evidence from documents and recordings made in NSW, some eleven years earlier.  He told the jury:

“She didn’t tell [her sister] when she was talking about the rape [in NSW] that her dad had in fact taken her to the police.  You know, ‘Instead of taking me there, he raped me.’  You might think if she had given [her sister] the [full account] of all of that in the first place, [her sister] might have said, ‘Whoa, hang on.  What are you saying?  What? You were down at the police station for hours?  Your dad made the [complaint] on your behalf.’  You know.”

35. [35]
    Mr Kissick returned a number of times to the evidence of the sister about the complainant’s report:

“She told [her sister] that instead of helping her or calling the police, he actually raped her.  She just denied saying that to [her sister], but of course [the sister] confirmed it and you might think from that, on my submission, too, that she held back [that] he did in fact contact the police on her behalf.”

36. [36]
    In summing up, the learned trial judge referred to the complainant’s evidence about being raped by the appellant in NSW as one of the circumstances requiring the jury to scrutinise the complainant’s evidence “with great care”, describing it in these terms:

“in 2007, following a report of the matter to police by the defendant, there was an investigation into the alleged rape of the complainant by [the other person] which is now alleged by the complainant to have occurred on the same occasion as one upon which she now alleges she was also raped twice by the defendant, but no report of such rape was made to police at that earlier time.”

37. [37]
    His Honour summarised the defence case, including in the following passage dealing with the sister’s evidence of the report:

“Mr Kissick suggested you might have thought the evidence was left as a father doing nothing about the allegation concerning [the other person] and having raped the girl himself, but in fact he reminded you that the defendant had taken the complainant to the police …”

38. [38]
    Mr Kissick sought no further direction after the learned trial judge concluded the summing up.

The appellant’s submissions

39. [39]
    In this appeal, the appellant contends:

“The prosecution’s reliance on the evidence [of the mother and sister] to buttress the complainant’s credit was not balanced by anything said by the learned trial judge, carrying the weight of his office.

… the prosecution’s reliance on the evidence of [the mother] and [the sister] in relation to the 2007 NSW rape to buttress the complainant’s credit was not corrected by anything said by the trial judge, carrying the weight of his office.”

40. [40]
    There were two elements to the learned trial judge’s summing up.  The first was his Honour’s decision – discussed with counsel – in summarising the Crown case not to refer the jury to the evidence of the complainant’s mother or sister about her report to them of being raped by the appellant after she was raped by the other person in NSW.  The learned trial judge did as he had foreshadowed.  The second element was his Honour’s summary of the defence case in which he drew the jury’s attention to the alleged inconsistency between “a father doing nothing about” the alleged rape of his daughter by another person “and having raped the girl himself” on the one hand, and the “fact” that the appellant “had taken the complainant to the police”.
41. [41]
    The learned trial judge’s reminder to the jury of the “spin” the defence had elected to put on the sister’s evidence carried the weight of his office.  No such endorsement was accorded to the suggestion the excluded evidence might offer any support to the Crown case.  No other direction was requested at this time or later.
42. [42]
    As the High Court counsels, it is necessary to exercise considerable care when considering whether the defence counsel at the trial should have objected to the admission of the evidence before it was adduced.  As Hayne J expressed it:

“An appellate court does not and may not know what information trial counsel had when deciding whether or not to object to evidence.  That is why, in TKWJ, I concluded that the question of miscarriage does not turn on a factual inquiry into why trial counsel acted or did not act in a particular way.  That kind of inquiry cannot be made.  Rather, the question is whether there could be a reasonable explanation for the course that was adopted at trial.  If there could be such an explanation, it follows from the fundamental nature of a criminal trial as an adversarial and accusatorial process that no miscarriage of justice is shown to have occurred.”^[7]

43. [43]
    In respect of the failure to seek a direction of the kind now identified, as Callinan and Heydon JJ observed:

“These are tactical decisions, to be made, sometimes intuitively and on the basis of the client’s instructions, often upon an impression of a witness necessarily formed hurriedly, and having regard to the fluidity of any trial in which the outcome depends upon viva voce evidence.”^[8]

44. [44]
    Mr Kissick introduced evidence of the report in cross-examination of the complainant.  The complainant did not accept the suggestion that she gave her sister an incomplete account.  If the defence had objected to the sister’s evidence, earlier in the trial, with the effect that she gave no evidence of the complainant’s report to her, then a significant part of the defence attack on the complainant’s credit could have been materially hampered.
45. [45]
    Mr Kissick successfully objected to the mother and sister’s evidence after it had been adduced, by him in cross-examination of the mother and by the Crown in examination of the sister.  He knew then the learned trial judge would not refer to the excluded evidence and so would not explain to the jury how such evidence might be used to “buttress the complainant’s credit” or to raise questions about her reliability.  With the benefit of that knowledge, before his Honour summed up, Mr Kissick raised the sister’s excluded evidence with the jury as, perhaps, “the most important part” of the defence attack on the complainant’s credit.
46. [46]
    A specific direction to the jury to ignore the evidence of the mother and sister about the complainant reporting the uncharged rapes could have undermined the defence use of that evidence to discredit the complainant.  It could also highlight to the jury the evidence about the uncharged rapes, which were consistent with later charged acts.  This could adversely affect the jury’s consideration of the charged allegations.
47. [47]
    In the circumstances there could be a reasonable explanation for the course Mr Kissick adopted at trial.

The fourth aspect: cross-examination of the complainant’s mother about dreams

48. [48]
    It is convenient to deal separately with the fourth and final part of the first ground of appeal.  It is that the jury was not directed that they could use part of the evidence of the complainant’s mother.
49. [49]
    The mother’s evidence in chief was brief, completed in ten minutes on the third day of the trial.^[9]  Under cross-examination, Mr Kissick asked firstly about events shortly after the complainant had been raped by the other person in NSW in 2007; in particular about the complainant’s 16 year old brother going to stay with the complainant in NSW, because she was upset.
50. [50]
    This was followed by these exchanges:

“…It was in about May of 2017 that [the complainant] rang you; is that right?---Yes.

This is about saying something about [the appellant], correct?---Yes”.

51. [51]
    In this way Mr Kissick introduced the topic of the 2017 telephone call from the complainant to the witness, which had been the subject of her evidence in chief set out at [18] above.
52. [52]
    Mr Kissick then asked this sequence of questions:

“All right.  She rang you and told you that since she’d had her daughter …. she’d been having bad dreams.  And needed to let it all out; is that right?---Yeah, like, what had happened.  Like, it all come back because she had a daughter.

Right.  All right.  So “it all came back”.  What you put in your statement was, to the police, do you agree:

She had had bad dreams and need to let it out.

?---I did – I might’ve said - - -

Is that what you told the police, or was that - - -?---told – told him that, but I didn’t – because I was at work that day, on my lunch break.  And - - -

Right.  But that’s okay.  That’s okay.  That’s the same thing, isn’t it, really? It came back to her when she had her daughter.  That was the, sort of, thing she was telling you?---Yeah, what [the appellant] did to her.

Yes.  That’s what she was telling you: is that right?  I’ll start again.  You told the police – and I’m not trying to confuse you, I’m sorry – you told the police that it was in May 2017 that she rung you, right?---Yes.

And what you told the police was, she had something important to tell you, right? That right?---Yes.

Then she said:

That since having her daughter, … she’d been having bad dreams.  And needed to let it all out.

Is that what she told - - -?---Had dreams about what had happened to her - - -

Yes, I?--- - - - what her father had done.

…Okay.  She told you “that things had come back to her”, or something like that.  Is that the, sort of, expression she used?---I can’t remember.”

53. [53]
    In the appeal, the appellant contends this part of the cross-examination was admissible and the learned trial judge should have directed the jury that they could use it to assess the credit of the complainant.  In the written outline, the appellant contends:

“This evidence was general in nature, not confined to the 2007 NSW rapes, but related to the context in which the complainant made her disclosures and was therefore admissible complaint evidence.”

54. [54]
    It seems clear that Mr Kissick had objected to the whole of the mother’s evidence of what the complainant had told her over the telephone on the basis that it was hearsay and did not fall into the exception of preliminary complaint evidence, because it was not about any of the charged acts.
55. [55]
    In the exchanges with counsel following the successful objection, the learned trial judge proposed that the whole of the mother’s evidence would be excluded and there would be no preliminary complaint direction about it.  Mr Kissick did not demur.  In contrast, Mr Kissick identified that part of the sister’s evidence remained admissible as evidence of a preliminary complaint of a charged act; so indicating his attentiveness to the matter being decided by his Honour.
56. [56]
    Consideration of the full passage of cross-examination confirms, as noted at [29] above, the objection was validly taken and, with respect, correctly upheld.  The mother’s evidence was not about any of the charged acts.  The subject of the telephone conversation was the complainant’s report of the alleged uncharged rapes in NSW.  It was not about any sequence of events surrounding any charged act.  It was not about the time of any charged act or about the place where any charged act was alleged to have happened.  Mr Kissick did not ask the mother about any other or broader discussion with the complainant.  He did not ask, and the witness did not say that the complainant had reported any charged act to her at that time or said that any of the charged acts had been the subject of dreams.
57. [57]
    Notwithstanding the successful objection to the whole of the mother’s evidence, it was open to the defence to seek a direction to the jury about the use of the evidence of the complainant telling her mother about nightmares and dreams.  This could have been done before the learned trial judge summed up, or afterwards and before the jury reached a verdict.
58. [58]
    The effect of her mother’s account was that the complainant had said she was affected by memories recurring in dreams and nightmares after her child was born.  This was her explanation for reporting the 2007 events to her mother ten years afterwards.  If a direction had been sought, the jury would have had to be told they could use her evidence to bolster the complainant’s credit or to doubt it.  There was the potential for detriment to the appellant as well as the possibility of advantage.
59. [59]
    Mr Kissick was alive to the topic.  He referred to the mother’s evidence in his closing address, telling the jury that the complainant was:

“refreshing a memory; a memory that apparently – as she says to her mother – started coming back, it seems, when she had a daughter.  That was her assertion about that.  Nightmares; she used that expression.”

60. [60]
    In the circumstances, there could be a reasonable explanation for the course Mr Kissick adopted, electing to make use of this part of the mother’s evidence in his address, notwithstanding his successful objection to it, and not to seek what would have had to be a much more nuanced and balanced explanation of the evidence and its uses from the learned trial judge.

Conclusion on the first ground

61. [61]
    In the circumstances, no miscarriage of justice is shown to have occurred by reason of the treatment of the evidence of the complainant’s mother and sister at the trial.

The second ground of appeal

62. [62]
    The second ground concerns the learned trial judge’s directions to the jury commonly referred to as Longman and Robinson directions.

The Longman direction

63. [63]
    The appellant contends the jury should have been warned, specifically, in relation to the uncharged acts relied on to show the appellant’s sexual interest in the complainant, that the complainant’s long delay in reporting those uncharged acts had affected the fairness of the trial and that it would be dangerous to convict the appellant on her evidence alone unless, after scrutinising her evidence about the uncharged acts with great care and considering the relevant circumstances, they were satisfied beyond reasonable doubt of its truth and accuracy.
64. [64]
    The learned trial judge did warn the jury of these matters.  His Honour dealt with the charged acts and the uncharged acts in a single warning, describing them as “the many incidents she says happened up to 16 years ago”.  The warning included drawing the jury’s attention to the relevant circumstances as they related to both charged and uncharged acts.
65. [65]
    The appellant submits “there was no specific extension of the Longman direction to these [uncharged] acts”.  The submission is rejected.  The true complaint appears to be that, having given the warning about all the incidents alleged in the complainant’s evidence, the learned trial judge should have given the same form of warning again – about six paragraphs later in the transcript – when his Honour identified the evidence of the appellant’s sexual interest in the complainant by way of uncharged acts.  This submission is also rejected.  It makes no more sense than a submission that the warning should have been repeated, once again, later in the summing up, when the learned trial judge took the jury through the evidence relating to each of the charged acts.
66. [66]
    The direction given by the learned trial judge was adequate to warn the jury of the consequences flowing from the long delay in the complainant reporting any and all of the alleged conduct, charged and uncharged.  Mr Kissick did not ask for a separate specific direction.  It was not reasonably required.  There was no miscarriage of justice on this account.

The Robinson direction

67. [67]
    In the course of the Longman warning, the learned trial judge warned the jury about the specific circumstances that warranted their scrutiny “with great care” of the complainant’s uncorroborated evidence.  These were:

• “the delay, to which I have already referred, between the time of each alleged incident and the time the defendant was told of the complaint, and the lack of any opportunity to prove or disprove the allegation by, for example, timely medical examination or things of that kind”;
• “the age of the complainant at the time of the alleged incidents”;
• “the fact the complainant could recall very little detail about matters such as her schooling and interaction with health professionals at or about the times that the alleged offending was said to be occurring”;
• “that there was a statement by the complainant’s mother attributed to the complainant that the complainant’s allegations concerning earlier alleged offending by another person were lies”;
• “that the mother expressed concern based on a statement attributed to the complainant that the complainant would allege sexual interference by her, the mother”; and
• “that in 2007, following a report of the matter to police by the defendant, there was an investigation into the alleged rape of the complainant by [another person] which is now alleged by the complainant to have occurred on the same occasion as one upon which she now alleges she was also raped twice by the defendant, but no report of any such rape was made to police at that earlier time.”

68. [68]
    After the summing up concluded, the learned trial judge invited requests for redirections.  None was sought of this kind.
69. [69]
    The appellant submits that the learned trial judge should also have directed the jury to take great care before acting on the evidence of the complainant because of three additional circumstances:

• “The evidence from the complainant’s mother that she had told her the offending came back to her in dreams after she had her daughter”;
• “The complainant’s evidence to a similar effect, that she had told police the offending came back to her after her daughter was born”; and
• “The fact the prosecution had discontinued seven counts after the complainant failed to give evidence in relation to them.”

70. [70]
    It is convenient to consider the first two points together and then turn to the third.

The mother’s and the complainant’s evidence about dreams and childbirth

71. [71]
    The mother’s evidence is set out at [52] above.  It was to the effect that since the complainant had given birth to her daughter, she had experienced dreams about what the appellant had done to her.  The mother did not agree that the complainant had said the offending “came back to her”, as if she had forgotten it until then.  The decisions of Mr Kissick to object to the mother’s evidence as hearsay and to concur with his Honour giving no direction in respect of it, and his failure to seek any further direction about it, have been considered above.  For the reasons given, there was no miscarriage of justice in respect of the mother’s evidence.  In the circumstances, the excluded evidence could not be the subject of a Robinson warning.
72. [72]
    The complainant’s evidence was given in the following part of her cross-examination by Mr Kissick:

“When you were interviewed by a psychologist on the 18^th of February 2003, you said you just wanted to live with mum and my brothers and sisters?---Was that while I was living with [the appellant] or my mum?

This is before you moved to live with the defendant – with your father?---I don’t remember.

…

Okay.  All right.  Now, you were reporting having nightmares to the psychologist.  Do you recall that?  Sorry, this is to [a named person], a social worker.  I must get the names right – on the 18^th of February.  Remember reporting that you were having nightmares?---No I don’t.

Nightmares have been part of your whole life, haven’t they?---Of course they have.  I’m guessing everybody has nightmares.

When you went to the police to complain about your father, so I have jumped ahead here now?---Yeah, that’s fine.

You told the police that you’d been having nightmares after the birth of your daughter?---Yes I did.

And it was bringing things back to you?---Yes, it was.

Is that right?---Yes.

In the form of vivid nightmares?---What do you mean by vivid?

They were vivid, like real nightmares?---Some were, yeah.

Flashbacks?  Was that a word you used?---Similar things happened to me.

Yeah.  All right.  So – you see, when you were speaking to a psychologist, you were talking about nightmares about things like vampires.  Do you remember that?---No, I don’t.

And worried that they were real?---No, I don’t.

That there [were] really quite vivid nightmares going on.  You don’t recall any of that?---No, I don’t.  Sorry.”

73. [73]
    This cross-examination moves, with limited signalling, between 2003, when the complainant was 9, and 2017, when the complainant was 23, and then back to 2003.  Notwithstanding these temporal moves, the complainant distinguished between the things that happened to her and similar things in her dreams.  She did not say that the offending “came back to her in dreams”.  She did agree the birth of her child was bringing things back to her.
74. [74]
    When Mr Kissick referred to the complainant’s evidence in his address to the jury, he did not put that the complainant had said “she had told police the offending came back to her after her daughter was born”.  He referred only to the mother’s evidence, asserting it was to the effect set out at [59] above.  His references about the complainant’s evidence were confined to the delay in reporting to the police and the suggestion her knowledge of such things may have been related to her having entered into a relationship and given birth to her children:

“Now, that’s another thing, of course.  You know, she talks about high violence, she talks about sexual behaviours.  Let’s not forget that she raised nothing about this until 2017 when she was a mother of two children.  So sexual behaviours and violent behaviours at the hands of her boyfriend were familiar to her.  You know, you might have had some credibility or belief in her if she went to the police.  If there’s a police [station] at – there’s not a police station at Woody Point.  It might be somewhere else.  Redcliffe, perhaps.  Not sure.

At around about the time that there was this thing with the dog.  Or there was some close time proximity where she was saying things that a girl her age should not have known.  But don’t forget when she’s complaining, she’s 23 years of age.  She’s already got two children.”

75. [75]
    The complainant was aged between 9 and 12 when the offending conduct at Woody Point (near Redcliffe) was alleged to have occurred.  It would be no part of a Robinson direction that the complainant’s credibility could be affected by her failure to report her father to the police at such ages.  If the defence had asked the learned trial judge to give a direction to the jury about the mother’s or the complainant’s evidence of the offending coming back to her after her children were born, his Honour would have accurately summarised the evidence.  An accurate summary could undermine the version of the evidence Mr Kissick had put to the jury in his address.  In the circumstances, there could be a reasonable explanation for the failure to ask for such a direction.

Nolle prosequi for seven counts

76. [76]
    As noted above, the prosecution discontinued seven counts.  In the summing up, speaking of Mr Kissick, the learned trial judge told the jury:

“He reminded you the complainant did not give evidence of serious charges which were originally on the indictment, but which have now been discontinued as a consequence of that evidence not being given.  He illustrated that by saying that there’s no evidence of a rape by a rolling pin, which formed part of the basis of the charge of torture, no evidence of any oral rape and no evidence of a further alleged rape.  And he suggested the fact that she did not give evidence about those matters reflects poorly on her credibility and reliability and suggests, therefore, that you would have serious and real doubts about each of the charges for your consideration.”

77. [77]
    The jury asked a question about count 12 (the second maintaining offence) and the effect of the withdrawal of the four particular counts on the indictment that were alleged to have occurred during that period (counts 13 to 16).  The learned trial judge engaged with Mr Kissick about the response to the question.  He proposed, and his Honour agreed, that the response should include a direction that the complainant’s failure to come up to proof on the four particular counts was a matter the jury could consider in respect of her credit generally relevant to all remaining counts.
78. [78]
    The jury were directed by the learned trial judge that, with the removal of the four counts, there were “now, no specific acts or offences alleged to have been committed in that period of time”.  His Honour then moved to the more general direction about credit:

“And the fact that the complainant didn’t give evidence of any specific sexual offences but had originally made allegations of such sexual offences, depending on the view you take of the complainant’s evidence, that is a matter you would take into consideration in relation to count 12 but also in relation to all the other counts, as well.

You will recall I gave you directions that the complainant’s evidence is relevant to every count and the view you take when you separately consider every count will take into account your view of the complainant’s credibility and reliability generally.  … But it has that effect on your deliberations, both in relation to count 12 and then more generally in relation to the complainant’s evidence, because the removal of those counts was because she didn’t give any evidence of particular matters which she had earlier made allegations and which formed the basis for the charges.”

79. [79]
    After the jury retired, the learned trial judge asked whether there was any dissatisfaction or concern about his redirection to the jury.  Mr Kissick replied, “No, that’s fine.  Thank you, your Honour.”
80. [80]
    The re-direction drew to the jury’s attention the relevance of the shortfall in the complainant’s evidence for their assessment of her credibility and reliability generally.  Although it arose in the context of a question specific to count 12, the redirection was appropriately broadened to all remaining counts, as Mr Kissick had requested.
81. [81]
    The redirection was adequate to instruct the jury about the relevance of the complainant’s failure to give such evidence.  Although it concerned four counts, rather than all seven not proceeded with, the defence could reasonably have considered the direction to have been adequate for that purpose.  The four counts withdrawn left no specific counts for the second maintaining period.  The other three did not have any equivalent effect of hollowing out an entire relevant time period.  The complainant gave evidence of multiple counts in the other periods, so that the defence could have considered the other three withdrawn counts to be less significant, in terms of credit.  Reminding the jury they were also withdrawn could direct attention to the number of remaining counts in the other periods and reduce the impact of the withdrawal on the complainant’s credit.  The failure of the defence to request a still broader direction, referring to the other three counts the subject of the nolle, could be explicable in the circumstances.

Conclusion on the second ground

82. [82]
    No miscarriage of justice is shown to have occurred because the learned trial judge did not direct the jury in terms referred to in Robinson about: evidence of what the complainant told police about the offending coming back to her after her daughter was born; evidence of her mother of what the complainant had said about dreams she had had after her own daughter was born; and the fact the prosecution had not proceeded with seven counts on the indictment after the complainant failed to give evidence in relation to them.

Final disposition

83. [83]
    The appeal should be dismissed.