R v McCullagh[2021] QCA 6

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I have had the benefit of reading the draft reasons prepared by Crow J.  I agree with his Honour’s conclusions that there has been no satisfactory explanation for the delay in bringing the present application.
2. [2]
   In fact, I would be prepared to draw the conclusion that part of the delay was because the applicant had received legal advice which was not favourable as to success of any appeal, and he therefore let matters lie as a matter of deliberate choice, rather than simply inaction because he made requests to which he had no satisfactory response.  Specifically, knowing at all times that he had a right of appeal: (i) he had advice from his trial solicitors that effectively told him there was no basis for an appeal; (ii) when he retained new solicitors in September 2018 they were not asked to lodge an appeal; (iii) much of 2019 involved his wife discussing options as to an appeal, the solicitor having been given the trial transcripts and statements by February; (iv) in August 2019 the solicitors advised that there were difficulties with an appeal and it would be costly; that is consistent with the applicant not yet having decided whether to appeal; (v) by September 2019 the applicant had still not instructed steps to be taken; and (vi) when the applicant contacted Legal Aid in January 2020 it was to “restart” the process.
3. [3]
   If a deliberate decision not to appeal has been made based on an appreciation of legal advice, that presents a very significant obstacle to the grant of an extension of time within which to apply for leave to appeal.^[1]  Where such a deliberate decision has been made “an extension of time to allow an appeal would only be granted where it was demonstrably necessary to prevent a substantial injustice”.^[2]
4. [4]
   As for the suggested grounds of any proposed appeal, I agree with Crow J that there is no merit in the various contentions raised as to misdirections to the jury or inconsistent verdicts.
5. [5]
   As to the proposed ground based on an unreasonable verdict, or a verdict not supported by the evidence, I have reached the contrary conclusion to that of Crow J and will therefore explain my reasons for doing so.
6. [6]
   There is no doubt about the test to be applied.  An appellate court must examine the whole of the evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt.^[3]
7. [7]
   Any analysis of the evidence on an application for an extension of time within which to appeal will necessarily be a more truncated exercise than would be carried out were this the appeal itself.  Nonetheless, the parties have put the court in the position where it has the trial transcripts and can thus venture upon some assessment.
8. [8]
   Counts 1 to 5 consisted of offences against the complainant when she was under 12 years.  Counts 6 to 9 were alleged to have occurred when she was under 16 years.  The applicant was convicted on all but count 1.

Count 1 – indecent dealing

9. [9]
   The indictment alleged that count 1 occurred on a “date unknown between the thirty-first day of December, 2012 and the first day of January, 2014”.  The evidence concerning this incident came mainly from the police interview with the complainant, which occurred when she was 14 years old.  In essence, the complainant’s evidence was:

   1. (a)
      the incident occurred on a day when the applicant was picking up his daughter from after school care;^[4]
   2. (b)
      it happened when the complainant was in grade 5;^[5]
   3. (c)
      the incident happened after her mother’s boyfriend had moved out, because the complainant was only allowed to stay home once the boyfriend had moved out; he moved out two days before Valentine’s Day (14 February);^[6] and
   4. (d)
      during the incident the applicant touched her on the area of her vagina, rubbing on the outside of her underpants.
10. [10]
    The complainant’s mother gave evidence that her boyfriend moved out around Valentine’s Day in 2014.^[7]
11. [11]
    As with all counts, the applicant gave evidence denying that anything had occurred.
12. [12]
    During the summing-up the jury were reminded that the school records for the applicant’s daughter’s school had been tendered and showed that there was only one possible day in 2013 when the applicant picked his daughter up from after school care, and that was in November.^[8]
13. [13]
    During the course of deliberations the jury sent a note asking:

“… what they should do with the date range of a charge if they think the incident took place in 2014 but the charge is to the 1^st of January 2014.”^[9]

14. [14]
    When that issue was raised the prosecutor submitted that unless the jury were satisfied it occurred on a date within the dates of the indictment, albeit an unknown date in 2013, then the verdict would have to be not guilty.^[10]  The prosecutor rejected the prospect of amending the indictment.  The learned trial judge then directed the jury in these terms:^[11]

“HER HONOUR:  In relation to your question about the date range, the simple answer is that you can’t look beyond the dates charged on the indictment.  So, for example, in relation to count 1, the effect of that span of dates is that on a date unknown within that period of 2013, effectively, did this happen.  You need to be satisfied that it happened in the time – within the time period that has been charged.”

15. [15]
    In my view, it is plain that the jury were grappling with what they saw as a difficulty concerning count 1.  The date range ended on 1 January 2014.  The complainant gave evidence that the event occurred on a school day, after school, and when the applicant was picking up his daughter from after-school care.  She also said it happened when she was in grade 5, and after her mother’s boyfriend had moved out, which occurred around Valentine’s Day.  The mother’s evidence was that that Valentine’s Day was in 2014.
16. [16]
    In those circumstances, the jury’s question signified their acceptance of the complainant’s evidence that the incident took place, but outside the dates in the indictment.  Given the direction consequent upon the prosecutor’s submission, the acquittal on count 1 did not signify any rejection of the complainant’s evidence beyond the date on which the incident occurred.  Put another way, I cannot reach the conclusion that the acquittal on count 1 signified anything other than an acceptance of the complainant’s evidence on the critical feature, namely what occurred, whilst unable to be satisfied that it occurred within the date specified on the indictment.
17. [17]
    Therefore, the acquittal on count 1 does not signify that the jury had an adverse view of the complainant’s credibility or reliability.  The contrary is the case.  The jury accepted her evidence on all other counts.

Counts 2-4

18. [18]
    According to the complainant’s evidence, these events occurred when she was in grade 6.  The complainant said the events happened in the applicant’s bedroom, after the applicant had told the complainant to meet him there.  At the same time, the applicant told his children to remain in the car.  The complainant described the applicant rubbing her vagina, telling her to lie down on the bed when he pulled her dress up and her underpants down and put his penis in her vagina, and then, having moved his penis in and stopped, he then masturbated.
19. [19]
    They then went outside and the applicant drove to the Redcliffe Lagoon.  The complainant remembered the applicant’s two children in the back seat of the car while she sat in the front passenger seat.  The complainant described what she and the applicant were wearing in some detail.  In her oral evidence the complainant affirmed what she had said in the police interview, explained an error she had made as to her age at the time and identified photographs of the house where she said the event occurred.  She also recounted the essential details of that event.
20. [20]
    In cross-examination it was put to the complainant that none of the events the subject of counts 2-4 had happened at all.  It was also put that when the applicant drove the complainant to the Redcliffe Lagoon the applicant’s son had objected to going and was not in the car.  The complainant denied that, giving reasons why.
21. [21]
    The complainant’s son gave evidence that he was not made to wait in the car, nor was he in the car when the applicant went to the Redcliffe Lagoon.  The applicant denied that anything had taken place.

Count 5 – the Tangalooma incident

22. [22]
    This was an incident that the complainant alleged happened in the shed after her mother and she had been on a boating trip to Tangalooma with the applicant’s family.  In essence the complainant said that when they had returned they all went back to the applicant’s house where the complainant assisted in putting various items away in the shed.  While that was occurring the applicant pulled the top part of her shirt down and was sucking on her breasts.  She gave various details of the trip to Tangalooma and what had occurred while they were there.
23. [23]
    In her police interview the complainant said that once they had returned to the applicant’s house after the Tangalooma trip she was “putting stuff away from the boat”,^[12] which was also described as “putting stuff away in his shed”.^[13]  No question or answer in the police interview touched on whether the boat had been left at the marina, or taken back to the applicant’s house.  And the complainant did not say it had been brought back.  The description “putting away stuff from the boat” did not have to be understood as meaning out of the boat while it was at the house.
24. [24]
    In her oral evidence the complainant said that after they had returned to the applicant’s house, “we were packing away the stuff off the boat”.^[14]  She described the “stuff” as “the boogie boards and scuba diving gear – stuff that they used”.^[15]  By reference to some photographs, the complainant identified one as “[t]he one that’s parked outside is the one that we were packing the stuff off”.^[16]  The photographed showed that to be a boat on a trailer underneath the awning of the shed.  The complainant also identified a series of photographs that showed various people including herself on the boat during the trip to Tangalooma Island.^[17]  By reference to another photograph she identified what she thought was the boat they had travelled in, by reference to it being next to a green boat at the marina.^[18]
25. [25]
    In cross-examination as to the photograph of the boats at the marina,^[19] she was asked about the fact that she had said she was “fairly sure” that it was the boat they went on.  She answered “I’m not 100 per cent sure if that was the same boat but I remember it being a white boat”.^[20]  It was then put to her that exhibit 7 showed the actual boat they went on to Tangalooma, to which the complainant said “I’m not 100 per cent”,^[21] but she later accepted that it was.  It became evident in the course of that passage that the complainant had left her glasses at home and was having difficulty making out the details in the photographs.
26. [26]
    Then, when the complainant was again shown exhibit 5A (the photograph of the boat outside the shed) she accepted it was not the same boat, and expressed her confusion when reminded that she had given evidence that it was the boat from which stuff was being unpacked.^[22]  Notwithstanding that confusion, she accepted that exhibit 5A did not depict the boat on which they went to Tangalooma.^[23]  She also accepted that when they drove from the applicant’s house to the marina they did not take a boat with them, and the boat was left tied up at the marina when they returned.  The complainant said, “I don’t remember if we’d brought it home.  I think we did, but I can’t remember if we did or not”.^[24]  However, she continued “But I remember … taking stuff off that boat that’s there and taking it into the shed.”^[25]  Then, referred to both photographs, the complainant said she was unsure whether the stuff that was being unpacked was from the boat shown in the photograph next to the shed, as opposed to the boat at the marina.^[26]  However, ultimately the complainant said that the stuff that was unloaded to the shed was from the boat which stayed at the marina, shown in exhibit 7.^[27]  Then, when it was put that the boat stayed at the marina, the complainant said, “I remember taking a boat with us.  Like, taking it back”.^[28]
27. [27]
    The cross-examination continued and at a point when it was suggested that nothing had occurred, including that the complainant and the applicant were not alone in the shed unpacking items from the boat, the complainant said, “I remember taking a boat home, because if we didn’t, then how could we have unpacked stuff off a boat?”^[29]
28. [28]
    The complainant’s mother gave evidence that she drove the complainant to meet the applicant’s family at his house because they were “carpooling” and she did not know where to go to get to the boat.  Her evidence was that she and the complainant went in the one car along with the applicant’s wife and daughter, and a niece.  That vehicle was a five-seater utility.  The same five people returned in that utility after the boat trip, to the applicant’s house.
29. [29]
    As can be seen, the evidence at the trial identified a discrepancy between the applicant’s account and the complainant’s account.  In cross-examination the complainant was not sure but thought the boat they went in was brought back to the house.  Evidence from the applicant and others in his family, including photographic evidence, showed that could not be the case because of the size of the boat.  That discrepancy became a central feature of the cross-examination of the complainant in her pre-recorded evidence.  It also became the central feature of the address to the jury by defence counsel.
30. [30]
    Self-evidently, the jury accepted the complainant’s evidence, supported as it was by her mother.

Counts 6-9 – the swimming pool incident

31. [31]
    The complainant’s evidence was that this occurred when she was about 14, and on an occasion when she was in a swimming pool with the applicant and his daughter.  She described the applicant rubbing on her vagina, putting his finger inside her vagina, and then pulling her bikini bottom to one side and inserting his penis in her vagina.  She said that the applicant’s daughter was in the pool at the same time, but it was “sorta dark so she couldn’t see anything”.  She also described her position in relation to the applicant: he had hold of her around the waist, and she had her legs around his back.  She said it “sort of went from him holding me and then he’s, sort of like flipped me so I’m like on the water … [on] my stomach”.  The complainant described in some detail what she was wearing and how the particular assaults occurred, including the applicant rubbing her breasts.
32. [32]
    The complainant described the pool as “fairly big” and that the applicant’s daughter was at the far end of the pool “doing backflips”.
33. [33]
    In her oral evidence the complainant affirmed what she had said about this event, identified the pool from photographs, and reiterated that the applicant’s daughter was at the far end doing backflips.  In cross-examination it was put to the complainant that the events the subject of counts 6-9 had never happened, though it was accepted that there was an occasion when the complainant and the applicant were in the pool together with the applicant’s daughter, and that the applicant was holding the complainant and swinging her around in a form of “horseplay”.  The complainant denied that the events had never occurred, reiterating how they occurred.
34. [34]
    The applicant’s daughter was interviewed.  She could recall an occasion when the three of them were in the pool together but she did not see anything of the kind the complainant described.  However, she confirmed that it was “Going dark and then it was dark”,^[30] and said that one could only see half the length of the pool if underwater.^[31]
35. [35]
    The applicant gave evidence that there was an occasion when he was in the pool with the complainant and his daughter, and when he was touching the complainant, in the sense that he said he was trying to toss her.  However, he denied that any of the alleged events occurred.  Self-evidently the jury accepted the complainant as a reliable and credible witness.

Consideration

36. [36]
    Overall the inconsistencies between the complainant’s evidence and that of the applicant and other defence witnesses were not so compelling that they obliged the jury to reject her evidence as unreliable, or have such a doubt about acceptance of her evidence that it would prevent them from being satisfied that the events occurred as she said.  On each count her evidence was replete with consistently expressed detail, and there was some preliminary complaint evidence.
37. [37]
    The main conflict was that in respect of the evidence concerning which boat was the one taken to Tangalooma, whether it was left at the marina, and were items being unpacked directly from a boat in to the shed.  Those conflicts were all quintessential jury questions.  The complainant’s evidence was not that the boat had been taken back to the house, except in an ex-post facto rationalisation as to how could they have unpacked stuff off a boat if it had not been taken back.  Her evidence as to unloading stuff off the boat did not have to be understood as meaning off the boat while it sat there at the shed, as opposed to being stuff that was off the boat and then being packed into the shed.  As to this and other areas of the complainant’s evidence the jury had the benefit of seeing and hearing her evidence, which an appellate court does not.  The jury were not obliged, in my view, to conclude that the complainant’s evidence should have been rejected as unreliable, simply because of her confusion emanating from identifying boats in photographs.  After all, her oral evidence was given when she was 15 and the particular events she was recalling occurred at least three years prior to that.
38. [38]
    Other conflicts in the evidence (such as to do with events in the pool and who was in the car when they went to Redcliffe Lagoon) were also quintessentially jury questions.
39. [39]
    Therefore, I am unable to conclude that the proposed appeal is viable or the prospects of success are reasonable so as to overcome the unsatisfactory attempts to explain away the very long delay in bringing this application.^[32]  And, the review above shows that an extension of time is not demonstrably necessary to prevent a substantial injustice.
40. [40]
    For these reasons I would refuse the application for an extension of time within which to appeal.
41. [41]
    I propose the following order:

1. Application for extension of time within which to appeal refused.

42. [42]
    MULLINS JA:  I agree with the reasons of and the order proposed by Morrison JA.
43. [43]
    CROW J:  On 31 August 2018, a jury found the applicant guilty of three counts of rape and five counts of indecent treatment of the same child in the period between 31 December 2013 and 8 February 2017.  The jury found the applicant not guilty of one count of indecent treatment of the same child in the period between 31 December 2012 and 1 January 2014.  The applicant was sentenced to seven years’ imprisonment in respect of two of the rape convictions and lesser concurrent sentences in respect to the balance of the offending.
44. [44]
    The applicant has applied for leave to appeal his convictions out of time.
45. [45]
    Sections 671(1) and (3) of the Criminal Code (Qld) (“the Code”) provide:

“671 Time for appealing

1. (1)
   Any person convicted desiring to appeal to the Court, or to obtain the leave of the Court to appeal from any conviction or sentence, shall give notice of appeal or notice of application for leave to appeal, in the prescribed manner, within 1 calendar month of the date of such conviction or sentence.

…

3. (3)
   The time within which notice of appeal, or notice of an application for leave to appeal, may be given or within which the Attorney-General may appeal against sentence may be extended at any time by the Court.”

46. [46]
    Section 671(1) of the Criminal Code required the applicant to give notice of appeal or apply for leave to appeal prior to 30 September 2018.  The applicant filed his application for leave to appeal on 11 February 2020, almost 16 and a half months after he was convicted.
47. [47]
    The broad discretion to extend time provided by s 671(3) of the Code is ordinarily exercised having regard to the length of delay in lodging an appeal, whether there is a satisfactory or adequate explanation for the delay and, most importantly, the merits of the appeal.
48. [48]
    In R v GV, the Court said:^[33]

“[3] An application to extend time for leave to appeal against conviction may be allowed if there is a satisfactory explanation for the delay. Even if no satisfactory explanation for delay is given, an application to extend time may be granted if the applicant can demonstrate that to refuse it would result in a miscarriage of justice. In order to decide whether or not there is an adequate explanation and whether or not to refuse leave to extend time would result in a miscarriage of justice, it is necessary to look at the circumstances of the case.”

(Footnotes omitted.)

Explanation for delay

49. [49]
    The applicant asserted, in his notice of application for extension of time in which to appeal, that:^[34]

“Following my conviction on the 31-8-2018, I intended to immediately lodge an appeal, with the assistance of my Trial Lawyers – Fisher Dore. On 10-9-2018, I received advice from Fisher Dore stating that I could lodge an appeal, however, they had not identified any significant errors of law within the trial, and were unable to guarantee a successful outcome. I did not accept their findings…”

50. [50]
    The applicant then stated he conducted further research.  The applicant deposes that on 18 September 2018 his wife called AW Bale & Son Lawyers and arranged to meet with Mr Stuart Bale on 8 February 2019.^[35]  The applicant asserted that he and his wife liaised with AW Bale & Son Lawyers between February 2019 and December 2019^[36] and that “their response times were frustratingly slow, however, they did analyse my matter and agreed the areas identified all held merit for [an] appeal.”^[37]
51. [51]
    The applicant further asserts that on 13 January 2020, he contacted Legal Aid to obtain assistance and that Legal Aid “have indicated [that] they will assist me with my matter, subject to a successful application to the Court for an extension of time, and leave to appeal being granted.”^[38]
52. [52]
    Here, the applicant acted promptly in seeking assistance from his trial lawyers and a second firm AW Bale & Sons.  It should be noted that the applicant asserted, in his submissions to the Court, that he was under the belief that AW Bale & Sons had filed the necessary forms; however, this was a mistaken belief.  It was not until the applicant made contact with Legal Aid Queensland, that steps were taken toward, and ultimately resulting in, an application to extend time being lodged.
53. [53]
    Despite the applicant’s initial attempts to obtain legal assistance, the application to extend time was not lodged for 16 and a half months.  A delay in obtaining legal assistance to commence an appeal should not ordinarily be accepted as adequate explanation for delay.  A mistaken belief, as asserted by the applicant, that an appeal had in fact been lodged, may be accepted as a sufficient explanation for delay where the delay is limited.  However, as is the case here, it cannot be said that a mistaken belief is sufficient where there has been a delay of 16 and a half months, particularly where limited steps have been taken to contact the solicitors who supposedly lodged the appeal.
54. [54]
    I conclude that the applicant has not demonstrated an adequate or sufficient explanation for the delay in lodging an appeal.

Merits of appeal

55. [55]
    The consideration that ordinarily carries the most weight in considering an application to extend time is whether the applicant has demonstrated that to refuse may result in a miscarriage of justice; this requires the court to “look at the circumstances of the case”.
56. [56]
    The applicant seeks an extension of time “in order for Legal Aid Queensland to review the record as a whole, and fairly establish if any appeal may have merit and specifically on what grounds.”^[39]  That approach ought not be accepted.  It is a matter for the applicant to demonstrate that refusal by this Court to extend the period of time may result in a miscarriage of justice in order to obtain the extension of time.
57. [57]
    The applicant argues that the convictions ought to be set aside on the following grounds:

    1. (a)
       the learned trial judge failed to give proper directions to the jury as to the weight to be given to the complainant’s  and the complainant’s mother’s evidence by virtue of its repetition;
    2. (b)
       the learned trial judge erred in directing the jury with a modified version of the Markuleski direction;^[40]
    3. (c)
       the verdicts were inconsistent; and
    4. (d)
       the verdicts were unreasonable and cannot be supported having regard to the evidence.

Directions

58. [58]
    By his written outline of argument,^[41] the applicant argues that a miscarriage of justice has occurred due to the failure of the primary judge to:

    1. (a)
       warn the jury not to give undue weight to the evidence of the complainant after replaying the complainant’s evidence in the courtroom; and
    2. (b)
       instruct the jury that there was other countervailing evidence in the cross-examination of the witness, Ms P, after some but not all of Ms P’s evidence was read in court to the jury during redirections.
59. [59]
    With regard to the latter, that is the jury being warned of countervailing evidence, Hayne J said:^[42]

“…Depending upon the particular circumstances of the case, it may be necessary to warn the jury of the need to consider the replayed evidence in the light of countervailing evidence or considerations relied upon by the accused...”

60. [60]
    In the present case, after the primary judge had replayed the evidence of the complainant in respect of the pool incident (Counts 6 to 9), her Honour said:^[43]

“… [T]hat’s all the evidence of [A] in relation to count 6 to 9. Of course, there is some other evidence in relation to that night of the pool incident. You’ll remember that the accused’s daughter said that she didn’t see anything untoward in the pool. The accused gave evidence that he didn’t interfere with A in the pool and that [the] accused and his wife said they had told A that night about Tasmania and she seemed excited about the possibility of going with them. If you want any of the other evidence read back to you, it can be, but it is on the whole evidence [that] you will have to decide the case…”

61. [61]
    The “pool incident” refers to counts 6 to 9 and occurred on 8 February 2017.  The accused admitted that he, after having mowed his lawn, had a swim in his pool with both his daughter and the complainant.  The complainant gave evidence that whilst she was swimming in the pool with the applicant and his daughter, the applicant indecently dealt with her by rubbing her vagina, indecently dealt with her by rubbing her breasts, and raped her with both digital and penile penetration.
62. [62]
    The applicant gave evidence that he committed none of the acts.  The applicant’s daughter who was nearby in the pool did not see any of the suggested acts.  Following the swim in the pool, the applicant’s wife, who was not present at the time of the swimming in the pool, swore that A appeared excited about joining the applicant and his family on a holiday to Tasmania.
63. [63]
    As may be seen from the above excerpt from the redirections provided by the trial judge,^[44] the trial judge did remind the jury of each relevant part of the defence case in respect of counts 6 to 9 and reminded the jury that they must decide the case on the basis of the whole of the evidence and not simply what was recorded in the complainant’s evidence.
64. [64]
    The direction provided by the trial judge could only have been interpreted as a warning to the jury of the need to consider evidence other than the replayed evidence, and more specifically, the primary judge directly reminded the jury of all of the pertinent countervailing evidence and considerations relied upon by the applicant.
65. [65]
    By way of a note, MFI L, the jury asked to be reminded of the evidence of Ms P, the mother of the complainant.  After the primary judge read all of the relevant evidence of Ms P, the primary judge said:^[45]

“And that was the end of the evidence. Is there anything else I can help you with at this time? No. Thank you. You remember that the McCullagh’s [sic] also gave evidence about the boat and then being at the marina, and you have the records about that though…”

66. [66]
    The “boat incident” relates to count 5, where the applicant committed an indecent dealing in 2014 by sucking the complainant’s breasts.  The complainant gave evidence that the incident occurred after a boat trip to Tangalooma, with the boat being returned to the applicant’s property and the complainant assisting the applicant in removing equipment from the boat and placing it into the applicant’s shed.  It was during this process that the applicant committed the act of indecent dealing in the shed.
67. [67]
    However, the applicant showed, by reference to the applicant’s own evidence, the evidence of the applicant’s family, and the records of the marina, that the relevant boat remained at the marina and was not taken to the applicant’s home in 2014.  Hence, the primary judge’s reminder, after having re-read Ms P’s evidence to the jury, that there was evidence that the boat was not at the applicant’s house.
68. [68]
    The primary judge dealt with this sufficiently by reminding the jury of the evidence of the applicant’s family regarding the boat being at the marina and the supporting marina records.  The primary judge therefore, in a direct manner, did warn the jury of the inconsistency in the evidence.
69. [69]
    Accordingly, I conclude that there has been no misdirection of the jury in respect of either issue.

Markuleski direction

70. [70]
    A Markuleski direction,^[46] that the rejection of part of the complainant’s evidence ought to reasonably cause a rejection of all of the complainant’s evidence, was not sought by defence counsel nor by the prosecution.  Although, raised as a potential ground of appeal, the applicant did not make any submissions as to why the learned trial judge erred in giving a modified version the direction.

Inconsistent verdict

71. [71]
    The applicant argues that given the jury returned a verdict of not guilty on count 1 and guilty on counts 2 to 9 inclusive, a direct inconsistency exists.  That is incorrect.
72. [72]
    As will be discussed in more detail below, the offending for which the applicant was on trial related to four distinct periods or bouts of offending.  Count 1 is a discrete event and was not connected to another count.
73. [73]
    Therefore, in finding the applicant not guilty in relation to that count, no true or direct inconsistency arises.

Verdict unreasonable or not supported by the evidence

74. [74]
    Section 688E(1) of the Code provides:

“668E Determination of appeal in ordinary cases

1. (1)
   The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or can not be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.”

75. [75]
    The approach which an appellate court ought to take when considering “the unreasonableness ground” was stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen.^[47]  The court must ask itself:^[48]

“[W]hether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

76. [76]
    The test, as espoused in M v the Queen, was further clarified by the High Court in Libke v The Queen, in these terms:^[49]

“[113] But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must as distinct from might, have entertained a doubt about the appellant’s guilt.”

(Footnotes omitted; original emphasis.)

77. [77]
    Settings aside a jury verdict on the basis that it was unreasonable is a serious step.^[50]  The High Court has recently summarised the role of an appellate court as:^[51]

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

(Footnotes omitted.)

78. [78]
    Clearly, and as stated earlier, any assessment of the merits of an appeal on the ground of unreasonableness, necessarily requires an examination of the evidence.
79. [79]
    Despite a lack of direct inconsistency between the jury’s not guilty decision on count 1 and the guilty decisions on counts 2 through to 9, as mentioned above, it still should have created difficulties for the crown case as it directly went to the credibility of the complainant.  This requires some explanation.
80. [80]
    In Pell v The Queen, with reference to Jones v The Queen,^[52] Weinberg JA said:^[53]

“[1097] If, as I think, it was not open to the jury to be satisfied, beyond reasonable doubt, of the guilt of the applicant regarding the second incident, that is a factor that would, ordinarily, be expected to impact significantly upon the complainant’s credibility overall. In other words, a doubt about that matter would ordinarily cast real doubt upon the complainant’s credibility and reliability in relation to the first incident as well.”

(Footnotes omitted.)

81. [81]
    The complainant’s evidence was clear and consistent that the first occasion of sexual abuse (Count 1) occurred when the applicant was in Grade 5 in the 2013 calendar year^[54].  A combination of school records and the evidence of the applicant’s son, K, showed that was impossible.  The complainant’s evidence that Count 1 occurred in 2013 after the complainant’s mother’s boyfriend has moved out of their house was also damaged by the complainant’s mother’s evidence that her boyfriend moved out around Valentine’s Day 2014.  The jury note referred to at [13], shows that the jury rather than being troubled by this, took the view that Count 1 must have occurred in 2014 when the complainant was in Grade 6 (together with Counts 2, 3 and 4.)
82. [82]
    I consider that the fundamental change in the chronological narrative of the complainant’s evidence, (that is for Count 1 to have occurred, it could only have occurred in 2014, together with Counts 2, 3, and 4) does somewhat assist the applicant in support of his argument that the jury verdicts for counts 2 to 9 are unreasonable or not supported having regard to the evidence within the meaning of s 668E(1) of the Code.
83. [83]
    In the present case, the jury were confronted by allegations in respect of four distinct periods of unlawful criminal sexual acts perpetrated by the applicant upon the complainant.
84. [84]
    The first, subject to count 1, is said to have occurred on an undefined date in the 2013 calendar year.  It was alleged that the applicant, after picking the complainant up after school, was in the complainant’s bedroom and rubbed the complainant outside her underpants in the area of her vagina.
85. [85]
    The jury returned a verdict of not guilty in respect of count 1, when it was demonstrated that the allegation could not have occurred in 2013 by the school records which showed that on the only occasion the offence could have occurred, the applicant went to Officeworks with his son, K.
86. [86]
    It is this not guilty verdict, based on the impossibility of the offence occurring in 2013 and the complainant’s changing chronological narrative, which ought to “impact significantly upon the complainant’s credibility overall.”^[55]
87. [87]
    Counts 2, 3 and 4 occurred in 2014, whilst the complainant was in grade 6.  The complainant gave evidence that the offences occurred in the applicant’s bedroom prior to the applicant driving the complainant and his two children to the Redcliffe Lagoon.  The complainant gave evidence that during the sexual offending the applicant’s two children were waiting in the applicant’s car.  Following the offences the complainant then travelled, in the front passenger seat of the car, to the Redcliffe Lagoon with the applicant and his two children.^[56]  It should be noted that according the complainant’s evidence both the applicant’s children would either have been waiting for a lengthy period of time in the rear seats of the car, or swapped seats to accommodate the complainant in the front seat, despite the applicant’s son being 16 or 17 at the time.
88. [88]
    The applicant gave evidence that no such incident occurred.  The applicant’s son K swore in evidence that in 2014 he had been asked to attend to Redcliffe Lagoon with his father, his sister and the complainant but decided he would not attend and did not get in the car at all.  The applicant’s daughter, E, could not recall any occasion when the complainant was sitting in the front seat of the applicant’s car when K and herself were seated in the rear.^[57]
89. [89]
    It is difficult to logically reconcile the jury’s acceptance of the complainant’s evidence beyond reasonable doubt in respect of counts 2, 3, and 4, particularly in light of countervailing evidence from the applicant and his children.
90. [90]
    The third bout of criminal sexual offending relates to the “boat shed incident”, which occurred in the 2014 calendar year at the applicant’s house at Joyner.  Count 5, an indecent dealing, occurred when the applicant sucked on the complainant’s breasts.  The complainant gave evidence of the applicant’s boat being brought back to the applicant’s house at Joyner following a Tangalooma day trip.  According to the complainant, the boat was “parked outside … on a trailer”^[58]  Then, as the complainant was assisting the applicant and others in removing equipment from the boat and placing it into the applicant’s boat shed, the applicant indecently dealt with her.
91. [91]
    As shown by the records of the marina, the boat did not leave the marina in 2014.  The records of the marina were also supported by evidence from the applicant, the applicant’s wife and his two children.  Only the complainant and her mother gave evidence that the boat returned to the property at Joyner.^[59]
92. [92]
    As would be expected, as the boat was in the marina, the applicant, the applicant’s wife and the applicant’s two children gave consistent evidence that when boating, “stuff”^[60] would be taken from the shed at Joyner, placed into a car (a dual cab utility vehicle), and driven from the house at Joyner to the marina.  There, the “stuff” was offloaded onto the boat for the day’s boating.  Naturally the reverse occurred at the end of the day.
93. [93]
    The applicant’s daughter, E, did not recall the complainant ever putting stuff away or cleaning up the boat as that activity was performed by “my brother and dad”,^[61] however, E did concede that the complainant may have put stuff in the car.
94. [94]
    The mother of the complainant, Ms P, did support the complainant in respect of the boat being present at Joyner.^[62]  Ms P also gave evidence that she and the complainant drove in their own car from their house to the applicant’s house at Joyner prior to the Tangalooma trip as they were “car-pooling”.  The complainant’s mother, despite car-pooling with the applicant’s family and testifying that “[the boat] came back with us”, did not see a boat being towed back to the house at Joyner.^[63]
95. [95]
    The applicant, the applicant’s wife and his son, K, swore that that did not occur.  The boat was a twin hull, 30 foot Kevlacat.  A crane would be required to remove the boat from the water and it would then need to be placed on a semi-trailer for transportation, as it was too large for transportation on an ordinary boat trailer.^[64]  Ms P, despite giving evidence that the boat did return to the Joyner property and that she carpooled with the applicant family, did not see the boat being craned out of the water and/or placed on a semi-trailer.
96. [96]
    The applicant, his wife, and his son swore that the complainant and Ms P drove themselves in their own vehicle to the harbour and then drove themselves home, thus not attending at all at the complainant’s house after the day trip to Tangalooma.
97. [97]
    The evidence of Ms P regarding the car-pooling arrangements also raises further questions (besides her not seeing the boat being towed back).  It is uncontested that seven people attended the boating trip to Tangalooma (four members of the applicant’s family, Ms P, the complainant, and friend of E, S).  This is two more passengers than could fit into the applicant’s family 5-seat utility vehicle.^[65]
98. [98]
    The complainant’s mother, Ms P, gave clear evidence that she and the complainant travelled in the applicant’s family 5-seat utility vehicle.^[66]  It is an odd thing to suggest there was carpooling when the car to be used was already full and that the applicant and his son would need to abandon the car they packed in favour of the complainant and her mother.
99. [99]
    Once more, it would seem that the balance of objective evidence favours the conclusion that the complainant did not return to the applicant’s house following the Tangalooma trip; negating the opportunity for the relevant offence to occur.  Further, on the objective balance of the evidence, it is more likely than not that the boat was not present at the Joyner property, contrary to the evidence given by the complainant.
100. [100]
     Whilst, the absence of the boat does not necessarily negate the possibility that the incident occurred, as there would have been opportunity for it to occur regardless of the boats location, it, once more raises questions about the reliability of the complainant’s evidence; even more so in light of the complainant’s reduced credibility.^[67]
101. [101]
     In summary, the complainant’s version of the facts that the incident occurred during the transfer of boating equipment from the boat at Joyner to the shed at Joyner is not plausible.  The complainant’s mother’s version that she and the complainant attended at the applicant’s house after Tangalooma is not impossible, but it is less likely than the consistent version of the applicant, the applicant’s wife and the applicant’s son, K.  It was not factually disputed that following the day’s boating and after arrival in the marina, the applicant and his son, K, cleaned the boat that was in the marina for a “coupe [sic] of hours”.^[68]
102. [102]
     This supports the conclusion that a jury could not accept the complainant’s evidence beyond a reasonable doubt of the allegations the subject of count 5.  The opportunity for the offence to have occurred, that is, the transfer of equipment from the boat to the boat shed did not arise.
103. [103]
     The fourth set of offending, relating to counts 6 to 9 inclusive were said to be criminal sexual acts which occurred in the pool at the applicant’s house at Joyner.  The circumstances of counts 6 to 9 are discussed above, namely the allegations made against the applicant and accepted beyond reasonable doubt by the jury was that on 8 February 2017 the applicant not only rubbed the complainant’s vagina (count 6) and rubbed the complainant’s breast (count 8) but that the applicant additionally raped the complaint digitally (count 7) and with his penis (count 9).
104. [104]
     The offences occurred whilst the applicant’s daughter, aged 12, was swimming nearby in the pool.  The applicant denied that any incident had occurred.  The applicant’s daughter, E, swore that she had noticed nothing occurring in the pool and it is implausible to accept that the complainant could have been raped, particularly with penile penetration, in the pool without E noticing.
105. [105]
     There is the further inconsistent conduct of the complainant, where she expressed excitement about joining the applicant’s family in Tasmania, which, according to the applicant’s wife, occurred after the complainant and E exited the pool.
106. [106]
     It is difficult to reconcile the excitement exhibited by the complainant upon receiving news that she would be attending a holiday with the accused and his family in Tasmania, in such close proximity to the sexual offences.^[69]
107. [107]
     On returning to school after the weekend of 8 February 2017, the complainant said to Ms D, a guidance officer at her school that: “something happened last weekend”.  This was the first complaint made to Ms D.  The complainant told Ms D that she had been sexually assaulted on three occasions by the applicant in a bed when the applicant’s daughter, E, was also in the bed.  The allegations regarding any sexual offending occurring in a bed whilst E was present were not the subject of any charges (and were denied by both the applicant and E).
108. [108]
     The initial complaint, the allegations featuring offending occurring in a bed whilst E was present, made to Ms D differs from the complainant’s version provided at a later time to Ms L, a friend of the complainant’s mother.  The complaint to Ms L again differs from the version provided by the complainant to police officers.  The difference in the nature and content of fresh complaint evidence could not, by itself, cause a reasonable jury to necessarily reject the complainant’s evidence or at least fail to accept it beyond reasonable doubt.  However, the combination of the above several features may lead to a reasonable apprehension that an independent person would harbour a doubt as to the guilt of the applicant, which ought to have been entertained by the jury.
109. [109]
     The following matters, in combination, lead to a reasonable argument that there is “a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof”:^[70]

     1. (a)
        The jury’s acquittal on count 1, preferring as the jury did, the evidence of the school records as to the likely date involved, together with the evidence of the applicant and the applicant’s son, K, that the event did not occur.  This must have seriously damaged the credit and reliability of the complainant.
     2. (b)
        In respect of counts 2 to 4 the complainant’s evidence was contradicted by the evidence of:

        1. the applicant that the incidents did not occur;
        2. the applicant’s son, K, that he was not in the car at all prior to the trip to the Redcliffe Lagoon and therefore was not in the motor vehicle outside his house for a lengthy period of time; and
        3. the applicant’s daughter, E, that she was in the motor vehicle with the complainant, but not her brother, prior to attending the Redcliffe Lagoon.
     3. (c)
        In respect of the boat shed incident the subject of count 5, according to the records of the marina, and the evidence of members of the applicant’s family the boat did not leave the marina.  This raises serious questions as to the credibility and reliability of the complainant’s evidence on which the accused was convicted.
     4. (d)
        In respect of the two allegations of rape and indecent dealing in the pool on 8 February 2017, the complainant’s evidence was inconsistent with the applicant’s evidence, the applicant’s daughter’s evidence and, to a lesser degree, the applicant’s wife’s evidence.
     5. (e)
        There are inconsistent complaints made to Ms D and Ms L and police within one week of the incident of 8 February 2017.  This includes making complaints to Ms D of incidents occurring in a bed with E on the morning which the complainant went to the police, but failing to disclose those incidents to the police during her interview that night.  The complainant gave evidence that she forgot about the alleged additional incidents until cross-examination, saying in evidence, that she “wouldn’t have remembered everything” when talking to the police.^[71]
110. [110]
     Given the above matters, the application to extend time ought to be granted.