R v Harris[2021] QCA 96

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  I agree with the reasons of Fraser JA and with the order proposed by his Honour.

2. [2]
   FRASER JA:  After a trial the appellant was found guilty by her Honour Judge Lowry QC, sitting without a jury, of two offences of indecent treatment of a child under 16, under 12.  The trial judge published reasons for those verdicts.  The appellant appeals against the convictions.  The first ground of appeal is that the trial judge’s findings of guilt were unreasonable or cannot be supported having regard to the evidence.  Ground 2 contends – counsel for the appellant described this as his primary submission – that the trial judge erred in using the evidence of each of the two complainants (T and K) as support for the evidence of the other because the trial judge’s finding that there was no real risk of collusion between them was contrary to the evidence.  Ground 2 also contends that such use of the evidence was wrong for the additional reason that the trial judge erred in finding that the two offences occurred within days of each other.  The remaining grounds of appeal contend that the trial judge erred in the way in which she applied Longman v The Queen^[1] (ground 3), by failing to provide reasons on a point about K’s credibility and reliability (ground 4), and in assessing T and K’s evidence (ground 5).
3. [3]
   In addition to T and K, the witnesses in the Crown case were Mrs M (T’s mother), Mr L (T’s father), Mrs G (K’s mother), and three police officers (Detective Senior Constable Kristel Hawes, Officer P, and Detective Sergeant Michael Forrest).  The appellant and his sister gave evidence.
4. [4]
   The indictment charged that the appellant committed the offences between 1 January 2010 and 31 December 2012 in the small town in which T and K lived.  Upon their evidence the offences must have been committed before T moved to a different town in November 2012.  As the trial judge observed, the real issue in the trial was whether the evidence of T or K should be accepted in its essential parts beyond a reasonable doubt.

Outline of the case

5. [5]
   Officer P (a local police officer) made notes in a notebook of a complaint about the appellant made by K on 14 December 2016 when she was 14.  The notes start with the reference to “10 years in 2012 Sometime”.  K said that she was riding her bike with T towards the Bowls Club when they saw the appellant walking towards them.  They stopped to speak to him.  T said “don’t talk to him” and K said “he’s my mate”.  K said that they talked to him but she could not remember what they talked about.  A car came towards them and the appellant grabbed K’s bike seat whilst she was still on it, with his other hand on the handlebars.  He pulled K and the bike off the road.  He talked and rested his hand on K’s stomach, undid her pants button and zip, put his hands down her pants and into her underpants and told her to “shoosh”.  The appellant touched her vagina and moved his fingers around.  K pulled the appellant’s hand out of her pants.  K referred to seeing the appellant around after this.  He would say hello to her and would try to give her money.  They had no other interaction.  Officer P passed on the information to the Criminal Investigation Branch because he was not qualified to interview a child about the alleged offence.
6. [6]
   In K’s recorded interview with Detective Sergeant Forrest on 17 June 2017, when she was 15, K said the event happened when she was 10 or 11.  While she was riding her bike around town with T, the appellant was walking home from the Bowls Club.  T had told her “what he did to her” but K believed the appellant because he was “so nice” to her.  K said that they stopped to talk to the appellant and he said hello.  She could smell beer on his breath.  A car was coming.  She was still on the bike so the appellant grabbed the seat – “but like also touched my arse” – and pulled her off the side.  While the appellant was saying something, he put his hand down inside her jeans, undid the buttons and zip, put his hand under her underwear, moved his hand around, but “it didn’t go in”.  The appellant stood on her right side, put his left hand down under her clothing, and touched her vagina.  When K asked him what he was doing the appellant said “shoosh”.  T just stayed standing and did not say anything.  K grabbed the appellant’s hand and pulled it out and she and T rode away.  A few weeks after the appellant had touched her, the appellant saw her at the Bowls Club playing with her friends.  The appellant put five dollars on a little table and slid it towards K.  She didn’t take it.  The appellant grabbed it and left.
7. [7]
   K said that the only person she had told was her school principal, a week before her police interview.  K had not spoken to her mother about it.  T’s mother told K’s mother.  On the next day K’s father asked her what happened.  K said the appellant put his hand down her pants, and she was told not to go near the appellant.
8. [8]
   K said that before the appellant touched her T had told her that the appellant touched T when she was sitting in the backseat of her mother’s or her father’s car with the appellant, T’s mother was driving, and the appellant put his hand on her vagina and just rested it there.  T told her that probably about three days before the appellant touched her.  T did not say when it had happened.
9. [9]
   In T’s recorded police interview on 20 July 2017, when she was 15, T told Senior Constable Hawes that when she was between 10 and 12 her mother (Mrs M) was driving her through the town.  They saw T’s father (Mr L) and the appellant walking to the Bowls Club.  T’s mother stopped the car.  T’s father got into the front passenger’s side of the car and the appellant got into the back of the car on the passenger’s side.  The appellant leant over and touched T on the vagina on the outside of her clothes for five to ten seconds.  On that or the following day T told her mother that the appellant started touching her “down there” when they were in the back of the car going to the Bowls Club.  T was not sure if she told K about this.  T said that her mother spoke to K’s mother about the appellant.
10. [10]
    T told Senior Constable Hawes of an occasion when she and K were riding their bikes.  They saw the appellant walking onto the road from the Bowls Club.  T told K to keep riding because T did not want to talk to the appellant.  The appellant made them stop.  They were both still on their bikes.  The appellant came pretty close to K.  T was pretty sure that K and she were both facing the Bowls Club.  The appellant had his back to T when he was standing next to K’s bike.  T said she did not see what was happening but remembered K saying “stop” and “why is your hand there?”  T couldn’t really remember what happened after that.  T said that incident with K happened in the same year that the appellant did it to her.  She was pretty sure she told K what the appellant did to her and that the appellant was just a creep.  K did not tell T straight away what had happened.  T was pretty sure that not long afterwards K told her that the appellant put his hand down her pants.
11. [11]
    K and T gave pre-recorded evidence on 29 August 2019, when they were 17.
12. [12]
    K rejected suggestions in cross-examination that there was never an occasion when the appellant stood on the side of the road with K and T when they both had bikes, the appellant had not touched her in the way she had described to police, and he had never offered five dollars to her at the bowls club.
13. [13]
    T gave evidence that she left the country town when she was ten (which was in 2012) and at the end of year five.  The incident involving the appellant occurred when she was nine or ten.  T told K about it before anything happened to K.  T rejected suggestions in cross-examination that the appellant was never in the car with her and had never touched her vagina.
14. [14]
    Mr L gave evidence of an occasion, which he thought was roughly around 2010, when he and the appellant were walking to the Bowls Club after leaving a council Christmas party.  Whilst they were walking Mrs M offered them a lift.  He got into the front seat and the appellant got into the backseat with T.  Mr L noticed movement by the appellant in the backseat.  About two or three days later Mr L asked T some questions and she revealed that the appellant had reached over and touched her on the vagina.  Mr L said that the appellant sat behind him in the car.
15. [15]
    In cross-examination Mr L said he had spoken to Mrs M about his evidence in the two or three days before giving evidence.  He asked her what year the incident happened because he wasn’t sure and he was concerned about getting dates and years correct.  He said that apart from dates he did not discuss anything about his evidence with his wife.  In a statement Mr L gave to police in July 2017 it appeared that Mr L was not sure which side of the car the appellant sat in.  In cross-examination he said that T had told him what side of the car the defendant sat in.
16. [16]
    Mrs M gave evidence that there was a Christmas breakup party held at the Town Hall for the council workers which included Mr L and the appellant.  Mrs M said she was driving her car with T in the backseat when she saw the appellant and Mr L and she offered them a lift.  Mr L got into the front seat and the appellant got into the backseat.  She dropped Mr L and the appellant off at the Bowls Club before driving home.  Upon arriving at her home T said that the appellant had touched her “down below like in the lower region”.  Mrs M told her husband, Mr L, about T’s complaint when Mr L got home that evening or on the following morning.
17. [17]
    Mrs M disagreed with suggestions that she never gave the appellant and her husband a lift to the Bowls Club.  She said that the appellant got into the passenger’s side back seat of her car.  Defence counsel drew to her attention the inconsistency between that evidence and her statement to police that the appellant got into the back seat on the driver’s side.  Mrs M said it was such a long time ago she wasn’t 100 per cent certain.  She volunteered that she had asked T the night before she gave evidence where T was sitting and T told her she was sitting behind her.  Mrs M said that she could not recall where the appellant was sitting but he was in the backseat.
18. [18]
    K’s mother, Mrs G, gave evidence at the trial in February 2020 that T’s mother, Mrs M, told her that the appellant had touched K but she could not remember the words Mrs M used.  Her best estimate of when Mrs M spoke to her was that it was ten or 11 years previously.  In a statement to police in 2017 Mrs G had said it was about five years earlier.  Mrs G said she did not speak to K about Mrs M’s statement that the appellant had touched K and she did not complain to police.  Her explanation for not complaining to police was that they lived in a small community and the appellant was in with the police.
19. [19]
    Other parts of the evidence of the Crown witnesses, including what are submitted to be significant aspects of the cross-examinations of T and K, are adverted to in my discussion of the grounds of appeal.
20. [20]
    The appellant gave evidence to the following effect.  He denied the allegations against him.  There was no occasion when he travelled in a car with T and her parents.  He had not encountered K and T while they were riding their bicycles at night near the Bowls Club.  He denied that he had touched either K or T in the way they alleged.  On occasions K came to his house and played pool on a pool table which he purchased on 12 December 2011, as evidenced by a bank statement.  One such occasion was after a funeral in 2014 for a person who had been shot.  The appellant agreed that K did not go to his house to play pool by herself but was always with other children.
21. [21]
    The appellant’s sister gave evidence that K had been staying at Ms Koehler’s house when the appellant’s sister issued her tenants with an eviction notice in November 2016.  The evidence was said to impugn K’s credibility, apparently on the basis that K was bitter about the eviction notice.  K denied that.

Some of the trial judge’s findings

22. [22]
    The trial judge considered that the appellant’s sister’s evidence was collateral to the issues in the case and had no bearing upon the credibility or reliability of the evidence of K.  In relation to the appellant’s evidence about K playing pool at his house, the trial judge observed that K had given evidence that she thought she played pool at the appellant’s house before the appellant had touched her, since the pool table was bought when K would have been nine, it was possible that any such visit did occur before she was touched by the appellant.  The trial judge concluded that nothing turned on that evidence.
23. [23]
    In relation to two aspects of the appellant’s evidence the trial judge considered that the absence of a reasonable concession by the appellant suggested that he was attempting to distance himself from T and her family, which impacted negatively on his credibility.  The first point concerned evidence by the appellant in cross-examination that if, contrary to his evidence, Mrs M had offered him a lift he would have rejected it.  The appellant gave that evidence even though he agreed that in the small town people might offer a ride to another person if they were going to the same venue and the appellant accepted a lift from some people to get to the Bowls Club.  The second point concerned evidence by the appellant in which he specifically denied ever having been served by K at the supermarket where she worked and where he occasionally shopped.  The appellant gave evidence that he knew that K worked there but could not recall having seen her in the store.
24. [24]
    The primary judge considered the appellant’s categorical denial that K had ever served him was not believable in circumstances in which it would be unlikely for him to have retained memory upon something as innocuous as who served him in a supermarket.
25. [25]
    The trial judge did not find the appellant to be a credible witness and did not accept his evidence.  The appellant’s evidence did not leave the trial judge in a state of doubt as to the true state of affairs.
26. [26]
    After identifying the elements of each offence which the prosecution must prove beyond a reasonable doubt – that the appellant dealt with the complainant, the dealing was indecent, the dealing was unlawful, and the complainant was then under 16 and under 12 years of age – the trial judge observed that the real issue related not to the elements of the offences but to whether the material particulars in evidence of each or either of T and K ought to be accepted beyond reasonable doubt.  The trial judge analysed the other evidence to determine whether the prosecution had proved beyond reasonable doubt that the appellant was guilty of either of the two offences.

Ground 1: Unreasonable Verdict – Principles

27. [27]
    Section 668E(1) of the Criminal Code sets out three grounds upon which the Court must allow an appeal against conviction following a jury’s guilty verdict.  The first limb of s 668E(1) requires the Court to allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.  A verdict of guilty is unreasonable under that ground if it was not open to the jury on the whole of the evidence: M v The Queen^[2]  In that case, the High Court held that in most cases a doubt about guilt experienced by an appellate court will be a doubt the jury also should have experienced, and that:

“It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred … [i]f the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”^[3]

28. [28]
    Sections 614 – 615E of the Code make provision for trial by a judge alone.  Section 615B requires the judge to apply, as far as practicable, the same principles of law and procedure as would be applied in a trial before a jury.  By s 615C(1), in a trial by a judge alone, the judge may make any findings and give any verdict a jury could have made or given if the trial had been before a jury and any finding or verdict of the judge has for all purposes the same effect as a finding or a verdict of a jury.  Section 615C(2) provides that, without limiting s 615C(1) chapter 67 (which includes s 668E) applies with all necessary changes in relation to a person tried by a judge sitting without a jury in the same way as it applies to persons tried by a judge sitting with a jury.  Furthermore, s 615E(2) provides that references in an Act to a jury in the trial of a person include, unless the contrary intention appears, reference to a judge sitting without a jury.
29. [29]
    Very similar statutory provisions were considered by the High Court in Fleming v The Queen^[4] and Filippou v The Queen.^[5]  In relation to a provision in the same form as s 668E, the plurality judgment in Filippou confirmed the High Court’s conclusions in Fleming that each of the three grounds of appeal is capable of application to the verdict of a judge alone and the first limb addresses “attention to the evidence upon which the trial judge acted, or upon which it was open to the trial judge to act, in reaching the finding as to ultimate guilt”.^[6]  The plurality in Filippou answered some questions left open in Fleming, including the question whether an appellate court should intervene under the first limb only “if it appears that there is no evidence to support a finding of guilt or the evidence is all the one way…”.^[7]  The plurality concluded that the appellate court was also obliged to intervene where the finding is otherwise unreasonable in the sense identified in M v The Queen.
30. [30]
    Accordingly, in an appeal against conviction in a judge alone trial upon the ground that the verdict of the judge is unreasonable or cannot be supported having regard to the evidence, the Court must undertake an independent examination of the whole of the evidence at the trial and decide whether it was open to the judge to be satisfied beyond reasonable doubt of the appellant’s guilt.^[8]  In that exercise, the Court must take into account any advantage of the trial judge in seeing and hearing the evidence at the trial in the way described by the High Court in M v The Queen, substituting the word “judge’s” for the word “jury’s” in the passage quoted in [27] of these reasons.^[9]  (It should be noted that in Filippou, Gageler J considered that it may be open to an appellate court to adopt intermediate findings of fact of the trial judge about which no complaint has been made on appeal without independently assessing the evidence supporting those findings.^[10]  The respondent did not submit that such an approach is appropriate in this appeal and I would not adopt it.)
31. [31]
    I will discuss grounds 2 – 5 before explaining why I would not uphold ground 1.

Ground 2: The learned trial judge erred in using the evidence of K and T as cross-admissible in support of the evidence of the other because the finding made by the learned trial Judge that there was no real risk of collusion between K and T was contrary to the evidence and the finding made by the learned trial Judge that the alleged offences occurred within days of each other, was also contrary to the evidence.

32. [32]
    The language of ground 2 and the way in which it was argued appear to confine the complaint to an error in the use by the trial judge of the evidence of K and T to the exclusion of any contention that the evidence was not admissible.  If ground 2 is instead to be understood as comprehending a challenge to the admissibility of the evidence, it might be thought that it invokes both the second and third limbs of s 668E(1), which require the Court to allow an appeal if “the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law” and “or that on any ground whatsoever there was a miscarriage of justice”.  The effect of the materially identical New South Wales provision was paraphrased in the majority judgment in Filippou as requiring the Court to allow an appeal against conviction if:

“(2) … the judgment of the court of trial is wrong by reason of wrong decision of a question of law; or

3. (3)
   for any other ground there has been a miscarriage of justice …”^[11]

33. [33]
    Whether ground 2 concerns only the use or whether it also concerns the admissibility of evidence, however, the ground ultimately turns upon challenges to findings of fact.  The words commencing “because the finding” make it clear that the appellant’s complaint is predicated upon success in at least one of his challenges to the trial judge’s findings of fact that there was no risk of collusion and that the alleged offences occurred within days of each other.
34. [34]
    In Filippou, the majority held that the question under the second limb is “whether the error constitutes a miscarriage of justice in the sense of a departure from trial according to law”^[12] and that the third limb applies where “by reason of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial”.^[13]  The majority also decided that under the applicable New South Wales provisions, which are materially identical with the relevant provisions of the Criminal Code, where the question whether one of the three limbs is engaged depends upon a challenge to a finding of fact by the trial judge the task for the appellate court is “not whether it was “satisfied that the judge’s account was correct” but whether [the trial judge’s] findings … were not reasonably open”.^[14]  Finally in this respect, it should be noted that in some cases in which the second and third limbs are engaged, an appeal may be dismissed if the Court considers that no substantial miscarriage of justice has actually occurred.^[15]
35. [35]
    The appellant does not challenge the trial judge’s explanation of the requirements for the evidence of each complainant to be admissible in the case relating to the other complainant.  The trial judge observed that a matter that impacted upon her consideration of the evidence of the two complainants was whether the evidence of one was admissible in the case of the other.  The trial judge considered that for the evidence of T or K to be admissible against the other the evidence must satisfy the test in Pfennig v The Queen^[16] that there is no rational view of the evidence consistent with the innocence of the defendant.^[17]  The trial judge rejected the appellant’s argument that the evidence did not possess that high degree of cogency required to transcend its prejudicial affect and concluded that the “underlying unity” in the offences against each complainant bore no reasonable explanation other than the inculpation of the defendant.^[18]
36. [36]
    In that respect the primary judge referred to three matters:

    1. (a)
       The objective improbability of each event occurring other than as alleged was increased by an underlying pattern in which the appellant took advantage of opportunities that arose opportunistically in the same small town to express his sexual interest in young girls around ten years in a similar way by touching their vaginas for a short time in circumstances where the risk of discovery was significant.
    2. (b)
       Both offences occurred at a time when the appellant was drinking alcohol (the first being at a party and the second at the Bowls Club).
    3. (c)
       There was a temporal connection in the timing of the events, both occurring within days of each other.
37. [37]
    The trial judge considered that there was a high degree of probative force in each of K and T’s evidence involving the other because that evidence strongly supported proof that the appellant had a sexual interest in young girls upon which he was willing to act even at a significant risk of being detected.  The appellant’s tendency to act in that way in disregard of the real risk of another person seeing what he was doing was unusual and proved much more than a disposition to commit offences of this sort.  Proof of the appellant’s tendency to engage in sexual activities with young girls opportunistically despite the significant risk of detection was capable of removing a doubt which the brazenness of the appellant’s conduct otherwise might raise.  The trial judge held that the very substantial probative force of the evidence outweighed its prejudicial effect.
38. [38]
    The trial judge directed herself that before she could use the evidence of T or K in support of the other she must be satisfied that the evidence of each was independent of the other and that there was no real risk that they had together concocted their similar complaints.  The trial judge undertook an extensive and detailed analysis of the evidence and found that there was no real risk that the complaints of K or T were concocted or that they colluded to embellish a complaint.  The trial judge found each of T and K to be “honest and compelling”^[19] although K was “an unsophisticated young woman who was telling the truth as best as she could remember it” and there was “a degree of unreliability in K’s memory particularly in relation to when things occurred and the sequences in which they occurred”.^[20]
39. [39]
    As I have mentioned, the appellant argues that the trial judge made errors of fact in finding that the alleged offences occurred within days of each other and in finding that there was no real risk of collusion between the complainants.

Errors of fact

40. [40]
    In relation to the first point, counsel for the appellant acknowledges that upon the evidence the two offences may well have been committed within a relatively short time of each other but that the evidence was insufficiently precise to justify the trial judge’s finding that the events occurred within days of each other.
41. [41]
    In cross-examination T agreed that she was touched before K was touched.  T agreed that after she left the country town she stayed in touch with K.  T was asked whether “after it happened” she talked to K often about what had happened with the appellant and whether they shared their stories.^[21]  T said that they “didn’t really talk about it much, but as soon as it happened, we discussed it, but after that we kind of left it alone.”  In K’s police interview, K said that about three days before the appellant touched her T told her that the appellant had put his hand on her vagina whilst they were in the back of the car driven by T’s mother.  The respondent submits that those parts of the evidence support the challenged finding.
42. [42]
    T’s evidence upon the timing issue is rendered ambiguous by an ambiguity in the meaning of the word “it” in the question and answer upon which the respondent relies.  Furthermore, although K said in her police interview that T told her that she had been touched by the appellant probably about three days before the appellant touched K, K also said that T did not tell her when the appellant had touched her.  The complainants’ evidence conveys that the two offences were committed within a relatively short time of each other, as the appellant’s counsel acknowledged, but the evidence is too vague to support the finding that they occurred within days of each other.  For the following reasons, however, that conclusion has no impact upon the admissibility or probative force of the evidence.
43. [43]
    This is a case of the kind considered by the High Court in Hoch v The Queen,^[22] in which similar fact evidence is sought to be adduced where it is in issue whether the accused person committed the acts said to be similar.  Mason CJ, Wilson and Gaudron JJ explained that in such a case the probative value of the similar fact evidence “lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred” and evidence “which does not raise a question of improbability lacks the requisite probative value that renders it admissible”.^[23]
44. [44]
    The probative value required to make such evidence admissible is of a very high order.  As in other cases in which evidence sought to be admitted in a criminal trial is prejudicial to an accused because it reveals a propensity to commit an offence of the kind charged, the evidence is admissible only if its probative value is such that, when assessed in the context of the prosecution case and upon assumptions that it would be accepted as true and the remainder of the prosecution case may be accepted by the jury, on no reasonable view is the evidence consistent with innocence of the offence.^[24]  In R v WBN,^[25] which concerned similar fact evidence of the kind described in Hoch, it was held that the same proposition may be put in a different way; the evidence “must be such that, when it is added to the other evidence, it would eliminate any reasonable doubt which might be left by the other evidence.”
45. [45]
    The trial judge’s observation, that there was an “underlying unity” in the offences remains true despite the factual error; the acts of the appellant alleged by K and T were strikingly similar for the reasons given by the trial judge which are summarised in [36](a) and (b) of these reasons and because the similar acts occurred within a relatively short time of each other.  Indeed, that observation would remain true whether or not the acts occurred within a short time of each other.  The evidence of each of K and T that the appellant committed the acts charged was admissible in proof of the acts of which the other complained, the probative value of that evidence lying in the improbability of K and T giving their accounts of such strikingly similar acts unless the appellant had committed those acts.  The trial judge did not err in finding that there was a high degree of probative force in that evidence.
46. [46]
    I note that parts of the trial judge’s reasons convey that her Honour regarded the evidence as being admissible for the different reason that it was probative of the appellant having a propensity to touch the vaginas of young girls in circumstances carrying a significant risk of detection.  On either view there was, as the trial judge found, a high degree of probative force in each of K and T’s evidence involving the other, provided at least there was no real risk that it was the product of collusion.  The error of fact I have found is immaterial.  It was not productive of any error of law in the admission of the evidence or otherwise, such as to engage the second limb of s 668E(1) of the Criminal Code.  Nor did it put the fairness of the trial at risk.  I am also satisfied that, the evidence being admissible upon the footing that it had the high probative value upon the basis I have described, the error of fact did not deprive the appellant of a chance of acquittal that was fairly open to him.  Partly because the trial judge’s reasons expose in detail the way in which her Honour reasoned to the verdict, it is possible here to conclude that this error in fact had no significance in determining the verdict of guilty.^[26]  Indeed, the error I have described does appear not to have any significance for the admissibility or use of this evidence.
47. [47]
    If this error were regarded as engaging the third limb of s 668E(1), the proviso would operate to require the Court to find that no substantial injustice has actually occurred such that the appeal should be dismissed in so far as it depends upon this point.^[27]  (The alternative view, is that an error of fact of this kind, which could not reasonably be regarded as having affected the verdict, does not amount to a miscarriage of justice such as to engage the third limb.^[28])

No real risk of collusion

48. [48]
    It was held in Hoch that similar fact evidence will lack the necessary probative value required to render it admissible if there is “a possibility”^[29]  or a “real chance”^[30] that it was the product of collusion.  That aspect of the common law was altered in Queensland by the provision in s 132A of the Evidence Act 1977 that in criminal proceedings “similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, must not be ruled inadmissible on the ground that it may be the result of collusion or suggestion, and the weight of the evidence is a question for the jury, if any.”
49. [49]
    In a criminal trial heard by a judge alone it is for the trial judge to determine the weight of the evidence as part of the fact finding exercise.  The weight to be given to the similar fact evidence depends upon the trial judge’s assessment of it in the context of the other evidence at the trial.  If in the assessment of the trial judge there remains a possibility or a real chance that the similar fact evidence was the result of collusion or suggestion, the similar fact evidence will be incapable of eliminating a reasonable doubt that is not excluded upon the rest of the evidence.  The trial judge directed herself accordingly: “I have to be satisfied, that there is no real risk that T and K have together concocted the similar complaints.”^[31]
50. [50]
    The appellant submits that the prosecution did not exclude the real possibility of collusion because there was a possibility upon the evidence that T falsely told her mother, M, that the appellant had touched K on the breasts, and other evidence proved that T’s evidence was not independent of K’s evidence.

Possibility of a false complaint by T about K?

51. [51]
    K said in cross-examination that the occasion when the appellant touched her vagina was the only time the appellant touched her and it did not involve any fondling of her breasts or anything like that.  In cross-examination K said that her mother knew about “it” (in context, a reference to the appellant touching her on her vagina) because T’s mother had told K’s parents.  She agreed that she was not present for that conversation.  In T’s police interview she made no reference to the appellant touching K on the breasts.  In cross-examination T was asked whether she had told her mother about K being touched (“I don’t think so, no”) and whether she had ever told her mother that K got touched (“No. Not – not until it was brought up, like, recently, a couple of years ago, yeah.)”  In relation to the present issue, T said that she had never seen the appellant touch K on the breasts.
52. [52]
    Mr L gave evidence that at the Bowls Club he saw the appellant with his hand down K’s top.  The appellant leant over and put his hand down K’s top, around the breasts.  Mr L could not remember when this occurred or whether it was before or after the occasion when the appellant was in the car with his wife and daughter.  Mr L agreed that he did not say anything about this to the appellant or report it to police or the man who ran the Bowls Club.  When asked whether he reported it to K’s mother he said that his wife did, “maybe not over that circumstances, but over other – yeah”.  He said that he told his wife about what he had seen at the Bowls Club probably that night or the next morning.  He denied that it was untrue that he had seen the appellant touch K’s breasts at the Bowls Club.
53. [53]
    In cross-examination Mrs M said T told her at different times that the appellant “touches K’s breasts”.  Mrs M thought that T told her that before T complained about the appellant touching her vagina and that the conversation occurred a couple of years before they left the country town in November 2012.  Mrs M said that she spoke to K’s mother (Mrs G), a couple of days after T had told her of K’s allegation and told Mrs G that the appellant touched K’s breasts.  Mrs M said she could not remember whether she told Mr L about T’s statement that the appellant touched K’s breasts.  She did not report T’s statement about that to the police.  She was not sure why she did not report it.  She had heard the policeman was friends with the appellant and she probably wondered whether the policeman would do anything about it.
54. [54]
    The trial judge referred to Mr L’s acceptance that he did not do anything about seeing the appellant touch K’s breasts and that he advised his wife who, told K’s mother of that allegation, although she attributed it to T.  The trial judge found Mr L to be an honest witness doing his best to remember events that occurred a long time before and where, as he accepted, he did not initially believe T’s complaint and he did not report either allegation to the police.  The trial judge accepted his explanation, which was consistent with that of Mrs M and Mrs G, that he thought the police would not believe him.  The trial judge considered that a reasonable explanation for Mrs M’s complaint to Mrs G that the appellant touched K’s breasts was that Mrs M confused what she was told by T with what she was told Mr L; all of those events occurred at around the same time, and it was reasonably possible that Mrs M’s memory of who told her about K was mistaken, and that what Mrs M told Mrs G in fact came from Mr L.
55. [55]
    The appellant argues that the trial judge’s conclusion that it must have been Mr L who told Mrs M that he had witnessed the appellant place his hand down K’s top involved speculation because Mrs M did not say that such a conversation occurred and it was contrary to her evidence.  Upon the footing, however, that, as the trial judge found, both witness’s evidence was honest, it was an available inference that the explanation for the inconsistency between their accounts was that Mrs M had confused what she was told by T with what she was told by Mr L.  As the trial judge observed, all of those events occurred at around the same time; and it was reasonably possible that Mrs M’s memory of who told her about K was mistaken, and that it in fact came from Mr L.  No sufficient basis is established for this Court to displace the trial judge’s acceptance of T’s evidence that she did not tell Mrs M that the appellant had touched K on her breasts.  The absence of any such statement by T to Mrs M is consistent with the effect of K and T’s evidence that K’s only complaint to T, and subsequently to police, concerned the appellant touching K on her vagina when she and T were together on their bicycles.
56. [56]
    The appellant argues that the trial judge’s finding that Mr L was a credible and reliable witness was not available on the evidence, for two reasons.  First, Mr L failed to intervene at the Bowls Club despite his assertion that he saw the appellant touch K on her breasts and he failed afterwards to tell anyone other than his wife.  Mr L explained that he thought it was none of his business and that the police would not believe him.  Neither part of that explanation was evidently unreliable or dishonest.  As the trial judge observed when accepting Mr L’s explanation that he thought the police would not believe him, that part of his explanation was consistent with the explanations for not going to the police given by Mrs M and Mrs G.
57. [57]
    Secondly, the appellant argues that Mr L’s evidence that he saw the appellant touch K the day before or the day after T was touched by the appellant cannot be true in light of the evidence that T’s mother spoke to K’s mother before the appellant allegedly touched T.  The evidence about the order in which the relevant events occurred is not a sound basis for doubting the honesty and reliability of Mr L’s evidence.  The evidence given by Mr L and T’s mother conveyed that each was unsure about the order of the relevant events.  Mr L repeatedly expressed uncertainty about when he saw the appellant touch K at the Bowls Club.  For example, he said he was “not sure of the time that happened”, he was “not sure whether it was the day before or the day after” and he “can’t remember” because it was “a long time ago” whether it was either the day before or the day after.^[32]  Similarly, when it was put to T’s mother in cross-examination that the event concerning the car happened sometime after her visit to Mrs G’s house she answered, “I think that it was, yes, yes … yes, I think that’s right”.^[33]
58. [58]
    Having regard also to the trial judge’s advantage in seeing and hearing the evidence, it cannot be concluded that the trial judge erred in accepting Mr L’s evidence of what he saw the appellant do to K was honest.  It was open to the trial judge to act upon Mr L’s evidence that he communicated what he had seen to his wife, notwithstanding her different evidence.
59. [59]
    The trial judge considered that it was reasonably possible that what appeared to Mr L to be the appellant putting his hand onto the breast of K was instead the appellant putting his hand inside or near her t-shirt in such a way that it appeared to Mr L that the appellant was touching K’s breasts.  The trial judge referred to that possible reconciliation of the evidence in the context of considering arguments by the appellant about inconsistencies in the evidence, concluding that whilst Mr L’s evidence should be accepted, her Honour did not use that evidence to reason that the appellant had a sexual interest in K which he was willing to act on.^[34]
60. [60]
    The appellant argues that this rationalisation of the inconsistency between K’s evidence (that the appellant touched her only on the occasion when she was with T) and Mr L’s evidence (that he saw the appellant put his hand down K’s top) was not reasonably available in the light of K’s unequivocal denial of other sexual touching.  This argument allows insufficient scope for findings by the trial judge about the credibility and reliability of the oral testimony.  It was open to the trial judge to find that, notwithstanding the inconsistency, both witness’s evidence upon this point was honest.  There appears to have been room for a mistake by Mr L in the circumstances he described.  His evidence is reconcilable with K’s denial if Mr L was mistaken in concluding that the appellant had in fact touched K’s breasts.  In any event, this inconsistency did not require the trial judge to doubt the honesty or independence of K’s and T’s evidence of the offences charged against the appellant.
61. [61]
    The trial judge rejected the appellant’s argument that Mr L deliberately and falsely sought to bolster T’s allegations by giving evidence that he saw the appellant touch K on the breasts and told his wife about it.  The trial judge accepted (as Mr L had made plain) that he had discussed some aspects of his evidence with T and his wife, but the trial judge considered that Mr L’s concern was about getting dates and years correct.  That was unsurprising after the passing of so much time after the events.  The fact that the witnesses had those conversations did not point to a deliberate attempt to falsely bolster evidence.  The trial judge also considered that Mr L’s discussion with T about where the appellant sat in the back of the car during the offending alleged by T did not impact upon Mr L’s honesty.  His memory of where the appellant sat might be unreliable but it was the fact that the appellant sat in the back of the car with T that was essential.
62. [62]
    All of those findings were reasonably open upon the evidence for the reasons given by the trial judge.

T and K’s communications after the alleged offences

63. [63]
    The appellant argues that K’s evidence about her communications with T about the appellant suggests that T deliberately minimised the extent of her contact with K after T left the small town in an attempt to conceal the fact that they had colluded or embellished their allegations.  This was submitted to reflect adversely on T’s credibility and reliability, both as a complainant and as a witness to the offence charged against K.
64. [64]
    This argument encounters the immediate obstacle that the trial judge’s finding that K was an honest and compelling witness was qualified by her Honour’s findings that, whilst K told the truth “as best as she could remember it”, having regard to K’s lack of sophistication  and the lapse of time, there was “a degree of unreliability in K’s memory particularly in relation to when things occurred and the sequences in which they occurred”.^[35]  For that reason the trial judge required support for K’s evidence.^[36]  As I will explain, the distinction drawn between the reliability of K’s recollection of what the appellant did to her and the reliability of her recollection of the time and order of events is supported by evidence to which the trial judge referred.
65. [65]
    In order to appreciate the appellant’s argument on this topic it is necessary to refer to additional evidence.
66. [66]
    K complained to Officer P about four or five years after the occasion when she said that the appellant touched her when she and T had been riding their bicycles together.  At the time of that complaint on 14 December 2016 the appellant was in prison for a different sexual offence.  The appellant had been convicted of the offence of rape upon a child on 21 March 2016.  He was sentenced to two and one half years imprisonment.  The appellant was granted bail on 22 December 2016, after the Court of Appeal allowed his appeal against conviction and ordered a re-trial on 19 December 2016.  K’s complaint to police was therefore made after the appeal had been heard but before judgment was given.
67. [67]
    In K’s police interview six months later on 17 June 2017, when Detective Sergeant Forrest asked K whether she and T had talked about the appellant touching T, K responded, “Yeah on my phone when I went and told [Officer P].”  K said that when she told Officer P at the police station she and T talked about it on Facebook.  When K was cross-examined two years later in August 2019 she agreed that, in the period between when T left the small town and when K spoke to Officer P, K and T were in communication using some kind of app or text message.  She agreed that very soon after her interview with Officer P she sent a text to T.
68. [68]
    Screenshots of text messages exchanged between K and T on 14 December 2016 on K’s mobile phone were in evidence.  On 14 December 2016, K sent a text to T saying that K really needed to talk and asking T to call her as soon as possible.  K said that she really needed T’s help and it was about the appellant.  In cross-examination K said that she didn’t remember what they discussed in the phone conversation.  It was “a fair years”^[37] ago, but she believed they would have been talking about what the appellant did to them.  K told T that, if she wanted to, she could help and support K and come forward herself and if she did not want to then that was fine.  K said that she and T both knew that the appellant was in gaol.
69. [69]
    After the initial exchange in the text messages, T sent a message expressing interest in knowing where the appellant was in gaol.  K replied that she did not know.  Subsequent messages reveal T and K’s misapprehension that on the day of their communications the appellant was already out of gaol.  T expressed the view that it was unfair that the appellant was able to go out of gaol and agreed to help K.  In response to an inquiry by T, K asked T to tell police about what happened at the Bowls Club and also what the appellant did to T.  T replied that she did not hear what the appellant said but did see the appellant “touching your butt and stuff and putting his hands down there and stuff”.  T subsequently asked whether she should say what happened to her, because “I don’t have any evidence” but was happy to help if it went towards making the appellant stay away longer.  K replied to T that “You don’t need evidence” and “Just tell him everything, no pressure tho only if you’re comfortable with it”.  There were more exchanges between T and K about what they thought was the unfairness of the appellant being released from gaol.
70. [70]
    In the context of the messages T and K’s reference to “evidence” in these messages connoted evidence that would support their own accounts of the appellant’s offending conduct.  Upon the face of the messages they are consistent with T and K’s accounts of the appellant’s offending conduct being honest and reliable.
71. [71]
    The trial judge accepted evidence given by Detective Sergeant Forrest that he had looked through the chain of messages between K and T on K’s phone, photographed those that related to the investigation of the appellant, and satisfied himself that there were no other messages on the phone between K and T about the matter other than the ones he photographed.
72. [72]
    The trial judge summarised the evidence given by K and T about their messages and why K and T complained to police as follows:

“[33] K said that she had heard that the defendant was in gaol for touching [X] inappropriately. She said that wasn’t really the reason she decided to make a complaint to police but rather that she had seen him whilst she was working in a supermarket after he was released from gaol. It was suggested to K in cross-examination that the reason she went to see Officer P was because she wanted the defendant to stay in prison. She “somewhat agreed” with that suggestion. That K had seen the defendant in the supermarket does not provide an explanation for her approaching Officer P and disclosing the abuse to him. That is because at the time she spoke to Officer P the defendant was still incarcerated. However at the time that K was interviewed by Detective Forrest the defendant was no longer in gaol. She said to Detective Forrest that she had last seen the defendant two months earlier when she served him in the supermarket in which she worked. She further said that she used to work on weekends and would often see him in the store. She resigned as a consequence. Whilst this might have become her reason for making the complaint to Detective Forrest it does seem to me that her initial motivation was her belief that the defendant had been released from prison.

[34] T said in cross-examination that she spoke to K about what had happened as soon as each of the incidents occurred. They otherwise didn’t really discuss it. She said that once she left the small town she didn’t really talk about it with K until she [K] sent the messages informing T about the situation. T said that most of their conversations were via text messaging. Nothing was mentioned about the defendant until recently. In the telephone call that occurred on 14 December 2016 T said that K said to her “He has got out of gaol and I want to get him back in gaol and I need help. Can you help me? Come forward and be a witness to what happened.” T said “yes”. T said that she did not know that the defendant had been in gaol. T said that K did mention the reason why he was in gaol but she couldn’t remember what it was although she accepted that it was some kind of touching.”^[38]

73. [73]
    Taking into account that T was quite young when she moved from the small town, the trial judge accepted that she did not know that the appellant had been convicted of any offences relating to [X] until K told her about that on 14 December 2016.^[39]  Taking into account the intensely personal nature of the appellant’s conduct complained of by K and T and that they were young girls, the trial judge accepted T’s evidence that she and K did not really talk about the appellant after T had left the small town until the topic was brought up by K in the messages of 14 December 2016,^[40] notwithstanding K’s evidence that the two had communicated via text and actual conversations and otherwise electronically.
74. [74]
    The trial judge’s conclusion was consistent with the evidence that the two girls had had telephone and messenger conversations about the events on 14 December 2016 but not otherwise after T had left the town.  It was consistent also with evidence which revealed that K had a poor memory about the conversations she had with T after T had left the town: in cross examination K said that she did not remember if she and T had texted each other about the appellant before she went to the police, she later agreed that she had communicated with T via text and in actual conversations “sometimes”, on the phone and on Snapchat, but she could not clearly remember whether there were any via the messenger application – even though there was clearly a significant conversation via the messenger application.^[41]  Examples given by the trial judge support the conclusion that K’s memory about the sequence in which things occurred and when they occurred was unreliable in a way that did not necessarily bear upon the honesty and reliability of her evidence of the offence against her: both in K’s interview by Detective Sergeant Forrest and her evidence in cross-examination K said that the first person, other than T, she had told about what the appellant had done to her was her school principal, although the evidence was that K made disclosures to Officer P a significant time before she made disclosures to her school principal.
75. [75]
    The appellant submits that circumstances to which the trial judge referred – K’s lack of sophistication, the lapse of time, and the fact that K could not remember having conversations with T on the Messenger App – were insufficient reasons for rejecting K’s evidence about her communications with T.  In support of that submission, the appellant refers to K’s evidence that (between 2012 when T left the town and 14 December 2016) K could remember actual telephone conversations and Snapchat communications with T about the appellant and, contrary to evidence by T that she had not contacted K during that time because she did not have K’s telephone number, K had contacted T by telephone in that period.  As the trial judge pointed out, however, when K was asked in her police interview on 17 June 2017 if she had spoken to T about the events she referred only to a conversation on her phone when she had spoken to Officer P on 14 December 2016, and when first asked in cross-examination whether she and T had texted each other about the appellant before she went to the police K responded that she did not remember it.  Furthermore, T’s evidence that she had not telephoned K herself was consistent with the fact (to which the trial judge adverted ^[42]) that the messages in evidence reveal that K gave T her phone number on 14 December 2016.
76. [76]
    The trial judge’s qualifications upon her finding that K’s evidence relating to the present topic were justified by the considerations to which her Honour referred.  Reliance upon K’s evidence is therefore an insufficient basis for impugning the trial judge’s findings that T did not deliberately fail to disclose the full extent of conversations with K and their accounts did not give rise to any concern of concoction in their complaints.^[43]
77. [77]
    The appellant argues that findings by the trial judge that K and T “did not really talk about the defendant after [T] left the small town until it was brought up by K in the messages [on 14 December 2016]”^[44] and “that it [was] unlikely that there would have been significant conversation about the defendant” until K decided to go to the police^[45] are incompatible with the trial judge’s finding that K was an honest and generally reliable witness.  That overlooks the significance of the trial judge’s qualification upon the finding concerning the reliability of K’s evidence about when events occurred and the order in which they occurred.
78. [78]
    The appellant argues that T’s evidence, that when she communicated with K on 14 December 2016 she did not know that the appellant had been in gaol, minimised T’s knowledge of that fact, consistently with an attempt to conceal the collusion or embellishment between her and K.  That argument is inconsistent with the trial judge’s findings accepting T’s evidence as honest and reliable.  The appellant challenges those findings, again upon the basis of evidence by K which the trial judge found to be honest but incorrect, that T and K both knew the appellant was in gaol before the phone call.  The appellant’s argument is again an insufficient basis for challenging the trial judge’s acceptance of T’s evidence.  Contrary to another submission by the appellant, the trial judge’s acceptance of T’s evidence that she did not know that the appellant had been convicted of any offences until K told her on 14 December 2016 does derive support from the trial judge’s finding, that T moved from the small town when she was quite young.^[46]
79. [79]
    Again, all of those findings of fact were reasonably open to the trial judge for the reasons given by her Honour.

K’s motive to complain

80. [80]
    The appellant argues that the trial judge concluded that K was an honest and generally reliable witness, except as to time and sequence, without having adequately evaluated her explanation for making a complaint to police on 14 December 2016.
81. [81]
    Officer P’s notes of his interview with K on 14 December 2016 do not include any reference to K’s motivation for making her complaint at that time.  Detective Sergeant Forrest’s extensive duties prevented him from conducting a more thorough interview with K until 17 June 2017.^[47]  In that interview K was not asked for her motivation for having made her complaint to Officer P.  She was asked when she last saw the appellant.  She replied that it was at a supermarket she worked in when she served the appellant, which she estimated was around two months before that interview.  K said that every time she was working in the supermarket the appellant would come in.  She did not work there anymore because she could not face seeing and serving the appellant.
82. [82]
    In cross-examination on 29 August 2019, K gave evidence that she spoke to the police in December 2016 because she had served the appellant at the supermarket, it made her realise how much she disliked him, and that she needed to come forward.  That was a couple of weeks before she spoke to the police.  K worked weekends and a few days during the week and she saw the appellant every time she was working.  She agreed she had told police that the reason she stopped working there was because she used to see the appellant.  K agreed that when she saw Officer P she knew that the appellant had gone to prison for a different offence.  When asked whether that had anything to do with her decision to make her complaint at that particular point in time, as opposed to an earlier point in time, K replied, “Not really, no”.  She agreed that “Not really” meant “yes, it did have some relevance”.  She went on to say it had more to do with the fact that she had met the appellant at the supermarket and that she saw him at the supermarket “when he was released from jail”.^[48]  K said “Somewhat agree” when asked if the whole point of her going to see Officer P was to make sure that the appellant stayed in prison.^[49]
83. [83]
    The appellant argues that K’s initial explanation in her evidence in cross-examination that she had been prompted to complain because she had seen the appellant in the supermarket was untrue, because the appellant was imprisoned at that time.  The initial explanation was certainly incorrect.  It does not follow that it was dishonest.  K gave that initial explanation in cross-examination two and a half years after she had spoken to Officer P.  She did so in circumstances in which neither Officer P nor Detective Sergeant Forrest had earlier asked her what her motivation was for complaining to Officer P, but in answer to a different question by Detective Sergeant Forrest she had referred in some detail to her having an apparently powerful emotional reaction to seeing the appellant in the supermarket where she worked.
84. [84]
    The trial judge referred to the evidence upon which the appellant relies and observed:

“That K had seen the defendant in the supermarket does not provide an explanation for her approaching Officer P and disclosing the abuse to him. That is because at the time she spoke to Officer P the defendant was still incarcerated. However at the time that K was interviewed by Detective [Sergeant] Forrest the defendant was no longer in gaol. She said to Detective [Sergeant] Forrest that she had last seen the defendant two months earlier when she served him in the supermarket in which she worked. She further said that she used to work on weekends and would often see him in the store. She resigned as a consequence. Whilst this might have become her reason for making the complaint to Detective [Sergeant] Forrest it does seem to me that her initial motivation was her belief that the defendant had been released from prison.” ^[50]

85. [85]
    In the section of the reasons in which the trial judge discussed each of the appellant’s arguments in support of the proposition that there was a risk of collusion between K and T, the trial judge observed that it was “unsurprising to me that a 14 year old girl would [not] include, as part of the first disclosure she made, details of her motivation to make the complaint, in the absence of a question from the officer”.^[51]  After referring to K’s answers to questions upon this topic in cross-examination, the trial judge explained why she did not consider that those answers demonstrated a lack of candour by K:^[52]

“The messages between K and T make clear that shortly after speaking to Officer P, K expressed concern that the defendant was out of gaol. By the time she came to be interviewed by police some months later the defendant was back in the same small community and was attending the store where K worked. That was clearly a concern to her when interviewed by Detective [Sergeant] Forrest. As indicated, K did appear to have a poor memory for timings and sequences. The defendant’s attendance at the store became part of her motivation to continue with the complaint and readily explains these answers in cross-examination.”

86. [86]
    The trial judge also considered T’s evidence upon the same topic.  After she gave evidence in cross-examination that she did not know the appellant was in gaol before K told her on 14 December 2016, T said she was “really surprised and confused, but at the same time I was wondering … how he was allowed out and why, since I didn’t even know the context;” she did not think that it was good that the appellant was being let out because she did not think he should be.^[53]
87. [87]
    After having adverted to all of the material aspects of the evidence at the trial, including what the appellant had submitted to be inconsistencies and discrepancies in K and T’s evidence, the trial judge returned to the present topic in a section of the reasons headed “Motive”.  This section of the reasons both addresses the appellant’s arguments at trial that K and T were motivated to make a false complaint and also expresses more general conclusions upon the evidence as a whole.  The trial judge made the following findings.  K’s belief that the appellant had been released from prison was in part her motivation for going to the police.  Once T became aware of the appellant’s incarceration and apparent release, that motivated her to provide what support she could provide to K.  That motivation did not mean that K or T’s allegations were false or unreliable.  The trial judge took into account that K and T’s statements were not provided contemporaneously with the events they described and the trial judge also considered whether either or both of them had any incentive to conceal or misrepresent the facts.
88. [88]
    The trial judge concluded as follows:

“[109] I consider that each of K and T gave an honest and compelling account of unwanted sexual touching by the defendant towards each of them. The differences in their accounts of the event involving K are what I would expect of honest witnesses recounting an event that they each had experienced in different ways. If their accounts were identical I would be more inclined to consider them untruthful. The fact that there are differences in their account is what lends credence to each of their evidence about that event.

[110] I consider that K’s evidence provides strong support for T’s allegation in that it demonstrates that the defendant had an unnatural sexual interest in young girls of around her age which he was willing to act on despite the very real risk of being detected by another either adult or child.

[111] I also consider that T’s evidence provides strong support for K’s allegation in the same way. It removes any lingering doubts as to the reliability of K’s memory as to the timing and sequence of events.

[112] Whilst K, in particular was clearly distressed by the defendant’s release from prison I do not consider that this has led her to make a false complaint. I also consider T’s motivation in making a complaint was to support her friend. Her evidence in her section 93A statement that she did not in fact see what the defendant did to K suggests to me that she was not at all attempting to conceal or misrepresent the facts.”

89. [89]
    Paragraphs [109] and [112] comprehend the trial judge’s rejection upon the whole of the evidence of the risk of collusion between T and K advocated by the appellant at trial and again on appeal.  There was no inadequacy in her Honour’s careful and detailed evaluation of K’s and T’s explanations for complaining to police.  It may also be noted that the trial judge’s findings upon that topic are consistent with the content of the text messages already discussed.  Those messages are readily understood as conveying that, from the perspective of these young complainants, what they understood to be the appellant’s release from gaol was unfair because of his offending conduct against them.
90. [90]
    The trial judge’s findings were again reasonably open upon the evidence.

T’s refusal to submit her phone for examination

91. [91]
    The trial judge discussed evidence about a request from the appellant’s legal representatives, sent to police through the prosecution after K and T’s evidence had been recorded in August 2019, asking for the phones of T, Mrs M and K to be downloaded.
92. [92]
    Mrs M gave evidence that she remembered telling the police officer that she did not want to give her phone to the police officer but she was not sure why.  As the trial judge noted, the conversation, evidence of which was adduced, was innocuous.  There was no reference to the appellant or the offences alleged against him.  Mrs M denied that the reason was to prevent police seeing messages between herself and K.  She did not remember having a conversation with K by messenger in mid-2019.  After observing that it was unsurprising that Mrs M did not remember that conversation, the trial judge did not accept that Mrs M was deliberately attempting to conceal her conversation with K from the police.  No error is apparent in this analysis.
93. [93]
    Although K had been told that she did not have to hand over her phone for that purpose, she agreed to do so.  Photographs of messages between T and K on 16 July 2019 were tendered in evidence.  The trial judge accurately summarised the exchange of messages:^[54]

“[67] That conversation does not suggest to me that K and T have colluded together.  T is initially seeking information on the court process and indicating how she is feeling about the process.  They are both expressing their annoyance with the delay that has occurred in the section 21AK hearing being adjourned.  They express quite unsurprisingly that they just want it all over and done with.  The two girls were in a similar situation where they were having to face the experience of their evidence being challenged and tested by cross-examination in relation to an intensely personal matter.  That they sought comfort in each other is not surprising and does not lead me to consider that there was a real risk that they were colluding with each other.”

94. [94]
    The appellant noted that K and T had that conversation shortly before the pre-trial recording of their evidence and submitted they did so despite having been told not to discuss the case.  There is nothing in the text messages to suggest a risk that they were colluding with each other.
95. [95]
    Furthermore, the trial judge did not accept the evidence of Senior Constable Hawes that she had told T not to discuss her evidence with other witnesses.  Senior Constable Hawes gave evidence that she telephoned T on 2 September 2019 to obtain and examine T’s phone.  Senior Constable Hawes agreed with suggestions to her that T told her that she had no contact with K after providing her statement in 2017, Senior Constable Hawes told T why she needed to examine T’s phone, and T was not willing to provide her phone.  When asked to recount what Senior Constable Hawes told T, Senior Constable Hawes said that she told her that the Court had requested that her phone be downloaded to get any conversations that happened between her and K and even if they had not had any conversations that would still be helpful to the Court.
96. [96]
    After the trial judge made the unsurprising observation that the Court had made no such request, the trial judge concluded that if Senior Constable Hawes’ account of what she said to T was accurate it was entirely misleading, and if it was not accurate little weight should be attached to the evidence of her recollection.  The trial judge also found Senior Constable Hawes to be “a most unimpressive witness” and “she was reconstructing her evidence in a way that she thought would minimise any criticism over her”.^[55]  In that respect, the trial judge referred to the fact that Senior Constable Hawes was entirely unprepared to give evidence at the trial, she did not know the date she was tasked to interview T, she was unable even to give an estimate in terms of a week or month before her interview with T on 20 July 2017, she had no access to any material to assist her in giving evidence, she had not reviewed her interview with T, she had little memory of the contents of the photographs or the messages between T and K, she had little recollection of what T said in the interview, and she did not recall taking a statement from Mr L where she had in fact done so.
97. [97]
    Some of the evidence to which the trial judge referred shed light upon the lack of care with which Senior Constable Hawes carried out her duties, including her preparation to give evidence at the trial.  Contrary to one of the appellant’s arguments, that evidence was capable of informing an estimate of the reliability of Senior Constable Hawes’ evidence.  It cannot be said that the findings the trial judge made about the reliability of the officer’s evidence were not open upon the evidence.
98. [98]
    As the trial judge found, it was nevertheless apparent that T and Mrs M did not want their telephones to be examined by police.  The trial judge considered that to be unsurprising, each being entitled to privacy, it being likely that their phones would include vast amounts of material, possibly including matters of a personal or intimate nature, that might be completely irrelevant to any police investigation, and it being unknown how long the police intended to keep the phones.  In those circumstances the trial judge was not willing to conclude that T or Mrs M set out to avoid police becoming aware of any communication with K, “when such an inference rests on the acceptance of the memory of a most unimpressive witness”.^[56]
99. [99]
    The trial judge accepted that there had been conversations between K and T, and between T and her parents, about the evidence, but was satisfied that there was no real risk that the complaints of K or T had been concocted or that there had been any collusion between them to embellish either of their complaints.^[57]
100. [100]
     The appellant argued that it could be seen that T’s messages influenced K’s evidence. This argument, which was based upon evidence about the appellant touching K on her backside should be rejected: see [114] – [117] of these reasons.  The appellant has not identified an error in the trial judge’s finding that K’s evidence was not tainted by what she had been told by T.
101. [101]
     The trial judge’s findings were reasonably open for the reasons given by the trial judge.

Other matters

102. [102]
     For the reasons given in relation to ground 5, the other suggested inconsistencies in the evidence do not supply support for the appellant’s argument that the trial judge erred in finding that there was no real risk of collusion in K and T’s evidence.
103. [103]
     The appellant also relies upon the evidence that none of the four parents did anything to pursue K and T’s allegations when those allegations came to the parents’ knowledge.  Although it involves some degree of repetition, it is useful to set out the trial judge’s succinct explanation for her finding that the parents’ failures to act in a way protective of their daughters did not give rise to any concern about the truthfulness or reliability of T or K’s evidence of the appellant’s offending conduct, or even a concern about the truthfulness or reliability of Mrs M and Mr L (who the trial judge found to be honest and unsophisticated witnesses):

“Whilst it might seem on the face of it, surprising that nothing was done to bring these matters to the attention of police, there was a consistency in the individual reasoning of each of the three who gave evidence. The explanation for their failure to do anything was because there was a concern that the defendant was close to the police and by inference would be protected by police and they not believed. Given that they all lived in a small country town, that they were concerned that they would not be believed in circumstances where they considered that that the defendant had some connection to the police is not at all surprising. Mr L conceded that he didn’t believe T himself when he first became aware of her complaint.”^[58]

104. [104]
     That explanation accorded with the evidence to which the trial judge referred and no contention to the contrary was pursued in this appeal.  It might be otherwise in the case of much more serious offending, but in the particular circumstances here what otherwise might seem surprising on its face is readily reconcilable with the complainants’ accounts of the alleged offences being honest and reliable.  It cannot be said that the trial judge’s acceptance of the explanations for the parents’ failures to do anything in response to the complaints was not reasonably open to her Honour.

Conclusion on ground 2

105. [105]
     The appellant’s arguments do not establish any flaw in the trial judge’s reasoning process or in her Honour’s findings.  The trial judge’s findings were reasonably open upon the whole of the evidence for the reasons given by her Honour.

Ground 3: Longman v The Queen

106. [106]
     In the section of the reasons immediately preceding the verdicts, the trial judge explained that in coming to the conclusion in the preceding section of the reasons she had taken into account that the appellant suffered a forensic disadvantage as a result of the long delay between when the relevant events occurred and when he became aware of the allegations in October 2017.  The trial judge adverted to these disadvantages and directed herself about the significance of the delay in the following passage:

“The defendant has lost the opportunity of meaningfully testing and meeting the allegations by evidence that might otherwise have been available, evidence such as when the council Christmas party occurred, who else was present and might have seen how he travelled to the bowls club, evidence as to where he might have been at the time that K says she and T came across him on their bikes, evidence as to when the defendant left the bowls club, evidence as to whether anyone drove past the two girls at the time that they were riding their bikes. It is said that there is an absence of a complete record being available of all of the communication [between the] girls despite being aware of inappropriate conduct by the defendant at around the time between K and T from the time that T left the small town, given their use of multiple social media platforms and potentially actual conversations on the phone. I also factor into this consideration the fact that the parents of these two, … [to whom] these events occurred did nothing to investigate the matters themselves or draw them to the attention of police. That is particularly so with respect to Mrs G given her failure to even speak to K about the allegation when she became aware of it.

These are all matters which impact upon the fairness of the trial although I note that there would never be an occasion where there was a complete electronic record of all conversations whether by electronic means or by telephone between any two people. Nonetheless I factor all of these considerations into my assessment of the evidence and direct myself that it is dangerous to convict on the unsupported evidence of either T or K unless after scrutinising their individual evidence with great care, and keeping in mind this warning I am satisfied beyond reasonable doubt of the truth and accuracy of each of them.”^[59]

107. [107]
     The trial judge stated that she had carefully scrutinised the evidence of all the witnesses, particularly the evidence of K and T.  After referring to the support for each of T and K’s evidence already mentioned, the trial judge expressed satisfaction “beyond reasonable doubt of the essential features of the evidence of each of K and T and therefore of the elements of each of the offences”.^[60]
108. [108]
     The appellant argues that the direction the trial judge gave herself was inadequate because of the absence of reference to the possibility that T made a false complaint to her mother about the appellant touching K on the breasts and to what was contended to be an untruthful explanation given by K in cross-examination about the reason why she complained to police.  The appellant submits that it should not be assumed that the trial judge scrutinised those matters to the extent required.
109. [109]
     Both topics were the subject of detailed and careful analysis by the trial judge.  The trial judge embarked upon the scrutiny of those (and other issues) after observing that issues of contamination and collusion (which included those upon which the appellant now relies) arose for her consideration.^[61]  After an extensive outline of the evidence, which included evidence of the discussions between K and T,^[62] the trial judge gave herself conventional directions about the onus and standard of proof before observing that she had to return to the prosecution evidence to determine whether the appellant was guilty, “appreciating that there is more to my deliberations than simply choosing whose evidence I prefer”.^[63]  The trial judge then identified the elements of offences and discussed the cross-admissibility of each complainant’s evidence before addressing the issue of collusion, noting that she had to be satisfied that there was no real risk that T and K had concocted similar complaints.^[64]  In the following 25 paragraphs of the reasons,^[65] the trial judge undertook a detailed examination of the evidence relied upon by the appellant for his submission that there was a real risk of collusion.  That discussion included reference to both of the matters upon which the appellant now relies in support of ground 3.^[66]  After discussing many other arguments advanced by the appellant at trial, the trial judge directly addressed the appellant’s argument at trial that both K and T gave evidence from which it should be concluded that each had a motive to make a false complaint.^[67]
110. [110]
     The trial judge did scrutinise with great care the evidence upon which the appellant relies in support of ground 3.  The mere fact that the two matters upon which the appellant now relies were not expressly mentioned again by the trial judge in her discussion under the heading “Longman v The Queen (1989) 168 CLR 79” does not justify a different conclusion.

Ground 4:  The learned trial judge erred by failing to consider the effect on K’s credibility of K’s evidence that she complained to police on 14 December 2016 because she had seen the appellant at her workplace shortly before that date and by failing to provide reasons.

111. [111]
     The appellant argued that the trial judge failed to consider whether K’s initial false explanation in cross-examination for making her complaint in December 2016, in the context of her later concession that she made the complaint to keep the appellant in prison, was capable of significantly impairing K’s credibility.  It was submitted that the trial judge did not attempt to analyse how that initial assertion could be reconciled with the later evidence given by K about her reason for complaining to Officer P; K’s initial assertion could not be correct, given the admitted facts that at the time of the complaint to Officer P the appellant was still in custody serving a sentence for that other offence.
112. [112]
     Ground 4 is not established.  The trial judge’s reasons described in [84] – [89] of these reasons expose in detail the reasoning process adopted by her Honour.

Ground 5:  The learned trial judge erred in the assessment of the evidence of K and T by (a) failing to consider the combination of inconsistencies and discrepancies in the evidence of each of K and T; (b) failing to assess whether those inconsistencies and discrepancies affected not only the reliability but also the credibility of K and T; and (c) failing to assess whether the combination of inconsistencies and discrepancies in the evidence of K and T affected the finding as to risk of collusion between them.

113. [113]
     The suggested inconsistencies (the “inconsistencies and discrepancies”) the subject of ground 5 were considered by the trial judge in paragraphs [82] – [105] of her Honour’s reasons under the heading “Inconsistencies and discrepancies”.^[68]  I will advert to each suggested inconsistency.
114. [114]
     In [100] of these reasons I adverted to the appellant’s argument that it could be seen that T’s messages influenced K’s evidence.  On 14 December 2016 K did not mention to Officer P that the appellant touched her on her backside when moving her on her bike from the road.  On the same day, after the police interview T said in a text message to K that, “I did see him touching your butt and stuff … And putting his hands down there and stuff”.  In the police interview on 17 June 2017, during a detailed description of the relevant events K said, “So he like grabbed the seat, but like also touched my arse”.  K went on to describe the conduct of the appellant constituting the offence charged against him.
115. [115]
     In relation to that suggested inconsistency, the trial judge observed that the impression gained from K’s account in her police interview was that the touching on the backside was unintentional.  The trial judge referred to a statement by K in cross-examination that K thought she had told Officer P for this detail, although it was apparent that she had not.  The trial judge noted that Officer P gave evidence that he had not been trained in techniques to employ in interviewing children.  Unlike Detective Sergeant Forrest, who conducted the police interview with K upon which the appellant now relies, Officer P had not adopted the usual technique of officers who are trained in such interviews of asking the interviewee to “start at the beginning and tell me everything he did from the very beginning to the very end”.
116. [116]
     In cross-examination T agreed that there was a difference between her message (she saw the appellant touch K’s “butt and stuff” but didn’t hear what the appellant said) and what she told the police (she didn’t see what the appellant was doing but heard K say “stop, … why is your hand there?”).  T gave evidence that when K first asked her about it, “I was trying to recall the memories.  And I thought that from where I was I didn’t see him moving his arm touching her butt, but I did hear her say, “why is your hand there” and then afterwards she straight away told me that he was doing that, and so I assumed that was what he was doing and I saw him touching her butt, but maybe …”.  In response to the next question T said, “I did see what happened from where I was, which was him moving and stuff, and I assumed it was bad.  And she told me what happened after, so I just pieced the two things together”.^[69]
117. [117]
     As the trial judge considered, it is unsurprising that K’s account in her police interview was more fulsome than her account to Officer P.  The trial judge did not consider that K’s evidence had been tainted by what she had been told by T in those messages, and that K’s memory of the event was independent.^[70]  T’s explanation is consistent with her having been careful in her police interview to describe what she saw, rather than to give an impression resulting from a combination of what she saw and what she was immediately told by K.  The trial judge’s finding about this suggested inconsistency is to that effect.^[71]
118. [118]
     The trial judge rejected the appellant’s argument that K’s evidence that the appellant placed five dollars on the table and slid it towards her at the Bowls Club without saying anything to her was unlikely and it was unsupported by the evidence of a child, M, who was present at the time.  The evidence of Detective Sergeant Forrest was that M did not want to provide a statement but he indicated to police that he did not recall seeing a five dollar note.  The trial judge observed that she had not speculated about what [M] ^[72] might have said in evidence had he been called, but did not consider that K’s account was unlikely; whilst the trial judge considered K to be a compelling and honest witness, notwithstanding the degree of unreliability about her memory of when events occurred and the sequence in which they occurred, support for her evidence was important for the trial judge’s deliberations.^[73]
119. [119]
     The trial judge did not accept arguments that there was insufficient particularity about when the event involving K occurred or that what K said was inconsistent and unreliable.  The trial judge referred to the statement by K in her police interview from 17 June 2017 that she was “eleven.  Eleven, ten.  So sorta in between”.^[74]  When K was cross-examined she said she was 11 but the event could not have occurred when she was 11 because T then no longer lived in the town.  The trial judge considered that this error was explicable by the unreliability of K’s memory about the timing of events, but having found that T’s memory about the timing of events was reliable the trial judge found that the event occurred at the time T described “being a few days after she herself was touched”.  The trial judge observed that the incident involving T was readily linked to the objective event of the Council Christmas party.  That is so whether or not the different events occurred within days of each other or within a relatively short time of each other, or within the same calendar year.
120. [120]
     The trial judge accepted that there was some force in the appellant’s argument that it was improbable that the appellant would touch T in the way she described in the back seat of her parent’s car for a very short time while her parents were present.  The trial judge considered that proof of the appellant’s tendency to engage in sexual activity with another young girl in circumstances in which there was also a significant risk of discovery removed any doubt the trial judge had which the brazenness of the appellant’s conduct otherwise might have raised.^[75]  That conclusion was reasonably open upon the footing that, as the trial judge found, there was a high degree of probative force in each of K and T’s evidence involving the other, regardless of whether that probative value arose because the evidence demonstrated that the appellant had a sexual interest in young girls upon which he was willing to act, even at significant risk of being detected, or for the reason mentioned in [43] – [44] of these reasons that it was improbable that K and T would give their accounts of such strikingly similar acts unless the appellant had committed those acts.
121. [121]
     The trial judge discussed many other suggested inconsistencies.  In relation to each of those suggested inconsistencies, the trial judge explained her conclusion that it did not have the significance for which the appellant contended.  Given the absence of detailed arguments in the appeal upon these points, it is sufficient to categorise these suggested inconsistencies and succinctly describe the trial judge’s analyses of them.  In relation to some suggested inconsistencies, the trial judge found that upon analysis of the evidence there was in fact no inconsistency.^[76]  Another category of suggested inconsistencies were minor matters.^[77]  In another category, each suggested inconsistency was premised upon an unreliable prediction of how children might be expected to react when sexually offended against by an adult man.^[78]  Having considered the evidence afresh, my own views are to the same effect as those expressed by the trial judge.  Whether considered individually or collectively, the suggested inconsistencies are in no way inconsistent with a conclusion that each complainant’s evidence of the offence was both honest and reliable.
122. [122]
     The complaint in paragraph (b) of Ground 5 that the trial judge did not assess whether the inconsistencies affected the credibility of K and T, as opposed to the reliability of their evidence, is inconsistent with the way in which defence counsel addressed the trial judge.  At the trial, the appellant’s counsel addressed in detail the suggested inconsistencies after submitting that an examination of K and T’s evidence “fortified” the existence of a reasonable doubt derived from the more significant  matters in an earlier part of defence counsel’s address.^[79]  In that part of the address defence counsel did not submit that the subject inconsistencies impugned the credibility of K or T as opposed to the reliability of their evidence.  (Defence counsel did submit that the absence of any intervention by any of the four parents was “very troubling”,^[80] but that is not one of the inconsistencies the subject of the present ground of appeal.)  That explains why the trial judge commenced the discussion of these matters with the observation that the appellant argued that a number of inconsistencies in the evidence of T and K “give rise to a doubt as to the reliability of their evidence”.^[81]
123. [123]
     With one exception, in this part of the reasons the trial judge did consider the effect of the inconsistencies upon the credibility of K and T.  In some cases the trial judge expressly stated that the inconsistency did not impact upon the credibility or reliability of the evidence.^[82]  In other cases the trial judge used more general language which did not confine her conclusions to reliability: for example, the matter was “explained”,^[83] “not unexpected  in such circumstances by a young child sexually offended against by an adult man”,^[84] “not unusual”,^[85] or “has a reasonable explanation … and does not give rise to any concerns”.^[86]  It is only in relation to the suggested “absence of particularity” about K’s evidence of her age at the time of offending that the trial judge’s finding in this part of the reasons was limited to reliability.  In that respect the trial judge accepted that K’s memory of the timing of the events was unreliable,^[87] but that finding was directly responsive to defence counsel’s argument that K’s evidence was “inconsistent and unreliable”.  (In the result, the trial judge acted upon T’s evidence relating to this issue, which the trial judge found to be reliable.)
124. [124]
     In the third paragraph of the trial judge’s reasons, the trial judge referred to the issues of contamination and collusion and observed that the real issue in the trial was whether she was willing to accept the evidence of T or K in its essential parts beyond a reasonable doubt.  The trial judge then stated that for the following reasons she did so find.  After thoroughly considering the evidence and the arguments at trial, including all of the matters upon which the appellant now relies, the trial judge rejected the proposition that K and T’s allegation were “false or unreliable”,^[88] expressed the conclusion that “each of K and T gave an honest and compelling account of unwanted sexual touching by the defendant towards each of them”,^[89] referred to the support each complainant’s evidence supplied for the other complainant’s evidence,^[90] and rejected the argument that the complainants’ motivations for their complaints had led to them making false complaints.^[91]  The trial judge made it clear that, when assessing the evidence, she had acted upon the direction “that it is dangerous to convict on the unsupported evidence of either T or K unless after scrutinising their individual evidence with great care and “keeping in mind this [the Longman] warning I am satisfied beyond reasonable doubt of the truth and accuracy of each of them”.  The trial judge then concluded that, having scrutinised the evidence of all the witnesses and particularly the evidence of K and T carefully, the trial judge was satisfied beyond reasonable doubt of the essential features of each of K and T’s evidence, and therefore the elements of each of the offences.^[92]
125. [125]
     When the trial judge’s reasons are read as whole, those reasons convey that the trial judge took into account all of the inconsistencies in the evidence of each of K and T, where it was potentially relevant the trial judge considered whether those inconsistencies and discrepancies affected the reliability and the credibility of K and T, and the trial judge took all of those relevant matters into account when making the finding that there was no risk of collusion between K and T.

Ground 1: Unreasonable verdict – consideration

126. [126]
     Each of T and K gave coherent and apparently compelling evidence of the elements of the offence alleged against the appellant.  Each complainant adhered to her evidence of the offence in cross-examination.  K’s evidence derived support from T’s eyewitness evidence of conduct by the appellant that was consistent with him having committed the offence against K.  T’s evidence was supported, as to the opportunity for the appellant to commit the offence, by her parents.  The credibility of T’s evidence of the offence was supported by the evidence of her mother that T made a virtually immediate complaint to her mother that was substantially consistent with T’s account of the offence.
127. [127]
     The evidence relating to the more substantial matters upon which the appellant relies is discussed in [51] – [101] and [103] – [105] of these reasons.  Upon analysis, none of those matters has the importance attributed to it in the appellant’s argument, including the warning required by Longman v The Queen.  There were many other, less significant, inconsistencies within and between the evidence of the witnesses, but none of the matters upon which the appellant relies required the trial judge to doubt that either complainant’s evidence of the alleged offence was honest and reliable.
128. [128]
     It is necessary to have regard to the cumulative impact of all of the matters upon which the appellant relies in deciding whether, notwithstanding the appellant’s sworn denials, it was reasonably open to the trial judge to find the appellant guilty of each offence.  Upon the whole of the evidence it was reasonably open for the trial judge to find that proof of the offence against each complainant derived substantial support from the evidence of the other complainant that the appellant had committed a strikingly similar offence against her in the same small town.  The prosecution case may be regarded as stronger in the charge concerning T, having regard to the evidence of her nearly immediate complaint to her mother, but in each case the combination of the circumstances I have described established a strong case that the appellant was guilty of the offence charged against him.  It having been reasonably open to the trial judge to accept each complainant’s evidence as convincing proof of the elements of the alleged offence notwithstanding the appellant’s sworn denials, the guilty verdicts were reasonably open upon the evidence.

Order

129. [129]
     I would dismiss the appeal.

130. [130]
     NORTH J:  I agree with the reasons of Fraser JA and the order proposed.