R v Turner[2022] QCA 101

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  The appellant was convicted by a jury on five counts of sexual misconduct, occurring between 31 December 2017 and 29 June 2019.  The counts were:

   1. count 1 – maintaining an unlawful sexual relationship with a child under 16 years;
   2. counts 2 – 5 – unlawful and indecently dealing with a child under 16, and under the appellant’s care.
2. [2]
   The appellant challenges his convictions on four grounds namely:

   1. ground 1 – the verdict was unreasonable;
   2. ground 2 – the learned trial judge misdirected the jury with respect to the topic of what is evidence;
   3. ground 3 – misdirections were given with respect to the evidence of a preliminary complaint witness, PAL; and
   4. ground 4 – the learned trial judge erred in refusing to give it a Robinson direction.^[1]

Evidence at trial

3. [3]
   The evidence of the complainant (‘COM’) was given in the form of two recorded interviews pursuant to s 93A of the Evidence Act 1977 (Qld).  There was also a pre-recording of evidence pursuant to s 21AK of the Evidence Act.  Other evidence came from a friend of the complainant (‘PAL’).  In addition, each of the mothers of COM and PAL gave evidence.  Finally, a police interview with the appellant was played for the jury.

Complainant’s evidence

4. [4]
   COM was thirteen and half years old when she was first interviewed by the police.  The interview was conducted at a school and as will appear, that had an impact on COM.
5. [5]
   COM commenced by saying that her account concerned the appellant (her stepfather).  She told police it was “hard to remember stuff at the beginning”.^[2]  But the appellant started touching her and then kissing her.^[3]
6. [6]
   When pressed for details COM was reluctant to say anything because of her embarrassment with “everyone here”.^[4]
7. [7]
   However, she gave details consistent with Counts 2 to 4 by saying that the appellant touched her “on my boobs and down there … like, the front”.^[5]
8. [8]
   She identified “the front” as being used for peeing.  When asked to tell everything about how she was touched she said:^[6]

“COM:  Um, I tried to record it and everything when I have the chance … He like, he wouldn’t do it.

Police:  Okay.

COM:  So I think he had an idea of what I was tryna do even though I hide my phone.”

9. [9]
   She was asked to explain everything about her attempt to record things and she said:^[7]

“COM:  Before I walked into the door after school … I put my phone on record and then I put it in my pocket and turned my phone off.  And, and then I sit down and eat some food.  … But then he wouldn’t do anything all day.”

10. [10]
    She was asked if there was a time she could remember better than others, and she said “the touching part”, but was reluctant to go further saying “it’s a bit hard to say”, and explaining that as being “cause I don’t want to use words.”^[8]
11. [11]
    COM was pressed to provide details and eventually she did.  She said that the appellant “started rubbing my boobs”, and “then he opened my shirt and started sucking on them”, which all happened at the same time.  She identified that occasion as being during an afternoon when she was on a couch watching TV.  As to when it occurred, she identified it as being a weekday during “last term”.  She said she could remember a particular program that she was watching on television identifying it by name.^[9]  This conduct was the subject of Counts 2 and 3.
12. [12]
    COM was questioned in terms of providing further details.  She said:^[10]

    1. the appellant started touching her;
    2. she said that he should leave her alone;
    3. “then he started going to, down there … and rubbing down there”;^[11]
    4. the appellant then went out for a smoke and COM stayed on the couch;
    5. he started touching her breast first and then “went all down there and starting rubbing there”;
    6. she was lying on her stomach, watching TV;
    7. while she was lying on her stomach, the appellant grabbed her breast and started rubbing;  he got up and was kneeling on the floor next to where she was lying and “rubbing my boobs”;
    8. he was using both hands to rub her breasts.
13. [13]
    COM explained that when he was rubbing her breasts, he had one hand on each, touching them at the same time.^[12]  She was touched under her school clothes with skin-on-skin contact.^[13]  COM said that she and the appellant exchanged words during Counts 2 and 3:^[14]

“COM:  He said, do you want that?

Police:  Okay.  What’d you say?

COM:  I said, no.

Police:  And then what did he do?

COM:  And then he said, I know you do.  Don’t lie.”

14. [14]
    COM said that following that comment she tried running out the door.  The appellant pulled her back onto the couch by grabbing her around the waist and pushing her down.  Having forced her down he took COM’s shoes off and then grabbed her breasts again.^[15]
15. [15]
    COM said that on that second occasion the appellant put his hands underneath her shirt, asking her “do you like that?”, with COM responding that she did not.^[16]
16. [16]
    COM said the appellant then “went down there” and “put his finger in there and then he … used it”.^[17]  COM was reluctant to explain everything about what the appellant did down there, saying “I don’t really like saying it”.  Shortly thereafter she identified that the appellant used his right hand and when he put his finger in there, he “wiggled it around”, and that he was “Moving his finger around … In down there.”^[18]
17. [17]
    COM said that the appellant used his right index finger.  She could not see what was happening there as she covered her face with a pillow.^[19]  She explained that the insertion of the appellant’s finger felt quite “like slimy and everything” and that he “wiggled” the finger.^[20]  She was asked whether he did anything else such as moving the finger in and out, and she replied “No.”^[21]
18. [18]
    COM explained that the appellant stopped when her mother came home and that he did not want the mother to know.  According to COM the appellant told her not to tell her mother when he was “doing it”.  She went on:^[22]

“COM: He told me it um when he was doing it and when I tried to record it and … I sat down, had a little chat to him about it.

Police: Okay.  Tell me everything about that chat.  What did you say?

COM: Um, I said, why are you doing this stuff? … And he said, because it’s fun.”

19. [19]
    COM said she told her best friend, PAL, what had happened.  PAL told her mother and as a consequence COM told her own mother.
20. [20]
    COM said that whilst she knew there were other times when things had happened, she couldn’t remember them, with the exception of an event “the other day” when she was attempting to get dressed and the appellant knocked on the door, asking if she needed help.  She told him no, and to go away, and he did.^[23]  COM identified that she was about 12 and in year 7 when the touching and kissing occurred.  She also said that it always happened on the couch and nowhere else.^[24]  She was then asked if she remembered anything else and she referred to an event in the kitchen.  She said that she could remember everything about the kitchen.  She had been buttering bread when the appellant “started rubbing my butt” and then lifted her up on the cupboard asking her “do you want it”.^[25]
21. [21]
    She described the appellant using just one hand when rubbing her bottom, and that it was on the outside of her clothing.^[26]
22. [22]
    COM was asked how she felt when that occurred, and she said that she felt “like I was a slave”, and “being used.”^[27]
23. [23]
    COM was asked what it was she had told her mother, and she responded, “… mum, we need to talk … [the appellant] has been sexually harassing me.”^[28]  COM said she used the same terminology when she told PAL.
24. [24]
    COM explained the comment she had made at the beginning of the interview, namely that she had been trying to kill herself.  She described using sheets and blankets to wrap them around her neck and pull really hard.  She said she was angry because of the appellant.^[29]
25. [25]
    COM’s second interview with the police occurred when she was 14 years old.  The interview occurred after COM had spoken with an officer of the DPP.  She was asked about the topic of the conversation with the DPP, and COM said she couldn’t remember.  When prompted with the appellant’s name she identified the appellant as the “guy who raped me.”^[30]  She was reminded that the interview was because the DPP suggested there might be some other things she wanted to talk to the police about.  She was also reminded that the DPP had understood her to refer to more occasions than in her original police interview.  COM eventually and reluctantly said that the appellant had been “touching me inappropriately”, on the breasts and “In other places”.^[31]  COM explained that when the appellant touched her, he did it with two hands, “in every way” and underneath her clothes and her bra.^[32]  She reiterated that the appellant asked her if she liked it, and she said no.^[33]
26. [26]
    Eventually COM explained that the appellant would touch her every day after school and she had not told anybody until PAL’s birthday.^[34]  Then COM said that the touching happened mainly in the loungeroom, where he touched her “everywhere”, which she then explained as “Breasts, butt, in the front part”, identifying that as the vagina.^[35]  She was reminded of her account where the appellant inserted his finger in her vagina, but maintained that it occurred only the one time.^[36]
27. [27]
    The frequency was every day after school, which she estimated at three times a week.^[37]
28. [28]
    She said that there was a time where she had to touch the appellant.  This occurred in the loungeroom after school.  COM identified the place of touching as being on the appellant’s penis.  She said she had to stroke it and described the penis as “big and fat”, and “he was getting hard”.^[38]  Notwithstanding some prompting, COM maintained she did not see the appellant ejaculate.^[39]  She said that sort of touching was regular, two to three times a week.^[40]

Evidence of PAL

29. [29]
    PAL was 12 years old when she spoke to police.  She first dealt with what COM had told her concerning the appellant.  PAL said:^[41]

    1. COM was in PAL’s room and said the appellant “was touching her”;
    2. PAL “freaked out” and ran out to her mother;
    3. her mother asked whether COM had told COM’s mother, and the answer was no;
    4. they then went to get COM’s mother;
    5. they went to the house COM lived in and asked COM’s mother to accompany them; they went back to PAL’s house where COM’s mother was told what had been happening.
30. [30]
    Both of the mothers told COM and PAL that a recording should be made of when it happened so that they had some proof.
31. [31]
    PAL then volunteered that she had heard the recordings:^[42]

“I heard them recordings, after school one day when I was going to her house for swimming.  … And I heard him and then once I heard, don’t push on the couch, stop touching my butt and everything.  … And I heard, don’t touch me.  … And he was touching her hair and everything else.  They were really bad recordings.  ‘Cause yeah, she had it in her pocket.”

32. [32]
    PAL knew the date when COM had revealed what had happened to her because it was on PAL’s birthday.
33. [33]
    Shortly thereafter PAL was asked to revisit the details of what was said by COM when she revealed what the appellant had done.  PAL said, “She told me … her step-dad touches her and I don’t want him to … do it anymore”.^[43]  She clarified it by saying that COM had told her “he has been touching … he has been making her touch his down-there, and everything”.^[44]  She then clarified the phrase “down-there” as referring to the appellant’s penis.  Then she added a little more as to what COM had said:^[45]

“PAL: He has been pushing her on the couch, making her do stuff what she doesn’t wanna do.

Police: Okay, um.  Tell me everything about doing stuff.

PAL: Um, like, making, he was touching her and, he was making [COM] touch him in a way she doesn’t want to describe.

Police: Did she tell you, um, how he was touching her?

PAL: It, I, yeah, she told me how long has been going on for nearly last year.

…

Police: Did she explain … describe to you how he touched her?

PAL: No.”

34. [34]
    PAL said that COM had identified where she was touched, being “on the breasts on the arse”.^[46]  She said those were the words that COM had used.
35. [35]
    PAL returned to the question of whether COM had made recordings, saying that she was told by the mothers to record on the phone and “she did it”, and “I heard it”.^[47]
36. [36]
    PAL said that after the conversation on her birthday COM “has been doing recordings”, which she heard about one day when she was walking with COM to her house.  This occurred about a week after the disclosures on her birthday.  PAL said:^[48]

“We went out the back gates and then I asked her, how’s the recordings going and she said I got a couple.  And then, all of them say, don’t touch me, don’t touch my [INDISTINCT], I don’t wanna do that and everything else. … The same thing of what I told you.”

37. [37]
    PAL explained that she could hear COM and the appellant on the audio recording, describing the appellant’s voice as being one she knew.^[49]  She then described what she heard:^[50]

    1. “He pushed her.  That, that one was the short one because he, she, he pushed her, and it was probably twenty minutes.  He pushed her on the couch … he got on top of her.  Started, … hurting her.  And … she got up, went into her room, and, she, said, she paused the video”;
    2. “She said don’t push me”;
    3. “[S]he didn’t wanna get touched so she said don’t touch me”;
    4. the audio was “a little bit crackly so you, you can’t really hear it but I heard ‘don’t touch me’”;
    5. on the next recording she remembered, the appellant tried to kiss COM;  she heard “Don’t touch me, don’t kiss me … don’t play with me”;
    6. on the next audio she heard, the appellant grabbed COM and then forced her, and COM said “you’re squeezing me, it hurts”;
    7. she heard the appellant say, “I like this”, and “like baby and everything”.
38. [38]
    PAL said that she had “deleted the crackly ones where I couldn’t hear anything on”, doing that at the suggestion of COM.^[51]  She described the ones that she deleted as those where you couldn’t hear anything on it.  She said of the 30 or 40 recordings only three were deleted.^[52]

Oral evidence of COM

39. [39]
    In her oral evidence COM affirmed the truth of what was in the s 93A interviews.  Cross-examination of her established that when the appellant began touching and kissing her it was at the beginning of grade 7, and COM recalled the approximate month because it was before her mother’s birthday.^[53]
40. [40]
    As to what COM told PAL when she revealed the events, she agreed that she used the words “sexually harassing” to describe what the appellant had done and had not told her anything else about what had happened.  She said she learned the phrase “sexually harassing” from education at school.^[54]
41. [41]
    COM agreed that at the time she told PAL what had happened, she told her that the appellant was getting her to touch his penis.  She explained why she did not tell that to the police simply by saying “I didn’t think of it”.^[55]  COM also agreed that she had told PAL that the appellant had raped her.^[56]  However, she explained that by the word “rape” she did not mean that the appellant had put his penis into her vagina.  Rather, her use of the word “rape” meant sexual harassment, in the form of being touched inappropriately on her vagina, breasts and bottom.^[57]
42. [42]
    COM also agreed that she told PAL at one point that she thought she might be pregnant.  However, she explained that this was not because she might be pregnant by the appellant, but rather someone else.^[58]
43. [43]
    COM could not remember precisely what she told her mother but reaffirmed that her mother had suggested to her that she record the times when she and the appellant were together.  Then followed the following exchange:^[59]

“Now, after you speak to your mum in May of last year …? --- Yes.

--- you say you tried to record times when [the appellant] was acting sexually with you;  correct? --- Yes.

But you never managed to record anything? --- No.

Because you say to police – and this is at page 6, your Honour, the first interview – that you tried to record it and everything when you had the chance, but he wouldn’t do it? --- Yes.

So it’s the case, isn’t it, that there’s no actual recordings of [the appellant] doing anything with you sexually that you’ve recorded on your phone;  right? --- No.  Yep.

And with recordings; they wouldn’t be video recordings, would they?  They’d be audio? --- Yes.

And because those recordings don’t exist, you never would have been able to show them to anyone; correct? --- Correct.

And you’ve never shown them to [PAL]? --- No.

Because – as you have said – you didn’t make any? --- I tried to, but no.”

44. [44]
    Shortly thereafter COM was referred to a conversation with the prosecutor where she had referred to a point where all the memories came back.  She explained that the occasion was when she asked the appellant to stop doing things to her and “all the memories just came back”.  She also explained that these were real memories, “because I’ve experienced them.”^[60]
45. [45]
    Cross-examination in respect of the individual counts elicited the following points:

    1. COM reiterated the circumstances of Counts 2 and 3, and the touching of both her breasts under the clothing, as well as sucking on her breasts;^[61]
    2. she explained her lack of memory after certain points by reference to having had “a seizure or night terror not that long ago”, which caused her to forget some things;^[62]  She clarified that by saying that she had lost some memories but regained others;^[63]
    3. in respect of Count 4, COM affirmed that the appellant used his pointer finger to touch her in the area of her vagina, but said that it was not inside the vagina but on top;^[64]
    4. as for Count 5, she reiterated her account given to the police;
    5. she was cross examined about the fact that in her first interview she had not referred to the appellant getting her to touch his penis, saying she was not sure why she had not told them.^[65]
46. [46]
    She was referred to the start of the second interview where she said:

    1. the appellant raped her, but reiterated that she did not mean that the appellant had put his penis in her vagina;^[66]
    2. when questioned about the touching of the penis, she said the appellant would grab her hand; asked whether she ever felt anything coming out of the appellant’s penis, she said no.
47. [47]
    It was put to COM that the appellant had never touched her in a sexual way, which she denied.  It was also put that her account had been made up and was not true.  COM also denied that.

PAL’s oral evidence

48. [48]
    PAL was 13 when she gave her oral evidence.  She affirmed that what she told the police was true.
49. [49]
    In cross-examination the following points were made:

    1. when COM revealed what had happened, she said the appellant had pushed her onto the couch and “touched her breasts and her arse”; at that point COM did not mention being touched on her vagina; and, when COM referred to being made to touch the appellant, she used the word “dick”, not “privates”;^[67]
    2. she confirmed that she had heard some audio recordings, recognising the voices of COM and the appellant;^[68] she heard COM say “Don’t touch me”, the appellant trying to grab COM and kiss her, COM running and the appellant running after her, the appellant say “Come here” and COM screaming “No, Go away”;^[69]
    3. some of the recordings were crackly;
    4. she would have listened to about 10 to 15 recordings, usually when walking home from school;^[70] and

    5. a couple of months prior to her giving evidence COM had said she could have fallen pregnant to the appellant and that he had raped her;^[71] as to that, in re-examination PAL said that COM had not used the word “rape” before that.^[72]

Evidence of COM’s mother

50. [50]
    COM’s mother said that COM had been diagnosed with cerebral palsy when she was born, due to lack of oxygen.  That resulted in delays in walking and speech,^[73] and COM went to a special school before starting prep.^[74]
51. [51]
    She described her relationship with the appellant, and that he had not worked during the period they lived together because of medical issues.^[75]  Further, on the four days each week when she picked up her son from school, the appellant and COM were already home when she arrived.^[76]
52. [52]
    She said one day (on a weekend) COM and PAL came to the door and asked if she (the mother) would go back to PAL’s house because COM had something to speak to her about.  She did and COM said the appellant had been touching her and trying to get COM to touch his privates.^[77]  COM also said the appellant had “put his hands over her and tried to touch her breasts.”^[78]
53. [53]
    In cross-examination she reiterated that what COM said was that the appellant had touched COM on the breasts and trying to get her to touch him on the penis.  That had occurred in the lounge.^[79]
54. [54]
    She said it was PAL’s mother who suggested recording events, but she was never shown any such recordings, nor did she know if they existed.^[80]

Evidence of PAL’s mother

55. [55]
    PAL’s mother said that COM and PAL were at her house one day when they said they wanted to call the police.  When she asked why PAL’s response was that COM had been “played by with her step-dad.”  PAL said COM had been touched on her breasts and vagina.  The mother asked COM if that was true and COM said it was.^[81]  COM said her mother did not believe her.  COM used the phrase “Been touched.”^[82]
56. [56]
    Once COM’s mother returned with the girls, COM explained to her mother that she had been touched on her breasts and vagina and watched in the pool.  This had occurred when the mother was not at home and just after COM got home from school.^[83]  She could not remember the words used by COM but COM said she had been touched on her breasts and vagina.^[84]
57. [57]
    The mother told COM to record it and give it to her mother.  She described COM as: “wrecked” and a “really scared girl”; she “looked really whiter than ghosts … She was nervous.”^[85]
58. [58]
    In cross-examination the mother reiterated her account of what COM said,^[86] and that she had suggested that COM record the events and show it to her mother if there was any evidence.^[87]  The mother also said that the next day PAL had a telephone conversation with COM (on loudspeaker) in which COM said she had a recording of the appellant talking.^[88]  Her police statement was put to her as being a more accurate account, which she accepted.  In that account she heard COM say, “I have a voice recording of my dad in my bedroom talking to me and touching me. I don’t know what to do.”^[89]

Appellant’s interview

59. [59]
    A recording of the appellant’s interview with police was played for the jury.^[90]  The relevant points from that recording are:

    1. the appellant denied COM’s allegations, saying that they were made up because COM had recently been grounded and was not allowed to have her phone; and
    2. he said that on frequent occasions it was only he who was home when COM arrived home from school.

Ground 1 – unreasonable verdicts

60. [60]
    On Ground 1 (unreasonable verdicts) the central point advanced was that the conflicting evidence concerning the audio recordings was such that the jury must have had a doubt about guilt.  Further, but to a lesser extent, reliance was placed on the inconsistency concerning whether COM said she might be pregnant with the appellant’s child.  It was put this way:^[91]

“It is respectfully submitted that due to the way that the complainant’s version of events came to light, and also the issue of the complainant having stated that she did not have recordings of her father but yet, the witness [PAL] stating that she had heard recordings provided to her by the complainant, it is respectfully submitted should have raised a doubt in the jury’s mind.

Further the evolution of the complaint leading to an allegation that the complainant could have been pregnant with the appellant’s child although there was no suggestion of penile penetration should also have caused the jury concern.”

61. [61]
    In oral address to this Court Mr Lewis of Counsel urged that there were irreconcilable difficulties with COM’s evidence:^[92]

“The complainant says initially to police that she tried to make recordings but she did not make any recordings of her father’s sexual abuse of her. Quite clearly, [PAL] says that she listened to recordings that were provided by the complainant to her, and it was indicated to her that they were examples of the sexual abuse by her father, the appellant. The complainant then denied the existence of any such recordings. Interestingly, your Honours, [PAL’s mother] … gave evidence of overhearing a telephone call between the two girls where she heard the complainant talking about a recording, but she did not overhear the recording.

That leads, in my submission, to a conclusion, or one of a couple of conclusions. Either the complainant provided some sort of recording to [PAL] that was not what she said it was – and this is predicated on the proposition that [PAL] doesn’t have any skin in the game, and therefore there’s no real suggestion as to why she would lie about hearing these recordings that she had been told what they were. If that’s the case – and the complainant is fairly steadfast in her evidence that she did not, in fact, make any recordings and therefore could not have played … recordings to [PAL] – there is a fundamental question, in my submission, about the reliability of the complainant. And that fundamental question about her reliability is one that should have caused grave concerns for the jury, because they have to accept her beyond a reasonable doubt, and they were directed, quite properly, about that.”

62. [62]
    Mr Nardone, for the Crown, submitted that the conflict in evidence did not lead necessarily to a rejection of COM’s evidence, or the conclusion that she lacked credit:^[93]

“The evidence from the complainant and that of [PAL] of the existence of recordings of the appellant committing offending acts is in conflict. The complainant says only that she tried to make recordings of the appellant offending against her, but she was not able to record anything and she therefore had no recording to play to [PAL]. The evidence of [PAL] however was that the complainant told her that she had recordings which [PAL] listened to and they supported the complainant’s accusations. This contradictory evidence is not of the type that damages the credibility of the complainant (the primary issue for the jury). The complainant’s evidence suggests that a piece of particularly corroborative evidence that [PAL] stated she heard, does not exists. To deny the existence of the recording is contrary to the cause the complainant sought to assert. That concession could be seen to strengthen her credibility. The jury may have put to one side the evidence given by [PAL] in relation to the recordings. The existence or otherwise of the recording as detailed by [PAL] was not, in any case, determinative of verdict. The jury may simply have returned to an assessment of the honesty and reliability of the complainant when considering their verdict.”

63. [63]
    It is important to the resolution of this aspect of the case that several pieces of evidence be noted.
64. [64]
    First, four witnesses (COM, PAL, PAL’s mother and COM’s mother) said that PAL’s mother suggested that COM record the appellant’s actions.  COM had a phone on which she could do that.
65. [65]
    Secondly, the suggestion to record came on 6 May 2019,^[94] which was about 18 months after the commencement of the maintaining period,^[95] and only 12 days into the period for each of counts 2-5.  Just where that fell in terms of precisely when counts 2-5 occurred was not able to be determined.
66. [66]
    Thirdly, in her first police interview COM said she tried to record something, but the appellant would not do it because (she thought) he had an idea of what she was doing.^[96]  In her second interview, she also referred to an attempt to record what the appellant was doing when he said not to tell her mother.^[97]  In neither interview was she asked about other times of recording.
67. [67]
    Fourthly, PAL’s mother said she overheard a conversation between COM and PAL on the day after she said to record things, in which COM said she had a recording of the appellant talking to her and touching her.
68. [68]
    Fifthly, PAL said she had listened to various recordings made by COM.  She could recognise the voices of COM and the appellant.
69. [69]
    Sixthly, PAL’s account of having heard some of the recordings made by COM was given on 20 September 2019, about nine months prior to COM’s second police interview.  The issue of the recordings was not explored in the second interview.
70. [70]
    Seventhly, PAL said she had deleted some of the recordings, at COM’s suggestion.
71. [71]
    At the heart of this contention is the passage of COM’s evidence:^[98]

“Now, after you speak to your mum in May of last year - - -?---Yes.

- - - you say you tried to record times when [the appellant] was acting sexually with you; correct?---Yes.

But you never managed to record anything?---No.

Because you say to police – and this is at page 6, your Honour, the first interview – that you tried to record it and everything when you had the chance, but he wouldn’t do it?---Yes.

So it’s the case, isn’t it, that there’s no actual recordings of [the appellant] doing anything with you sexually that you’ve recorded on your phone; right?---No. Yep.

And with recordings; they wouldn’t be video recordings, would they? They’d be audio?---Yes.

And because those recordings don’t exist, you never would have been able to show them to anyone; correct?---Correct.

And you’ve never shown them to [PAL]?---No.

Because – as you said – you didn’t make any?---I tried to, but no.”

72. [72]
    In my view, there are some hurdles confronting a conclusion, based on that passage of evidence alone, that the jury should have had such a doubt concerning COM’s credibility that they could not find the appellant guilty.
73. [73]
    It may be observed that there was no challenge to the evidence that it was suggested to COM that she record the appellants conduct, nor that COM attempted to do so.
74. [74]
    The question “But you never managed to record anything?” was met with the negative response, “No”.  On its face COM was disagreeing with the proposition that she never recorded anything.  That may well have been how the jury understood that answer.  There is no compelling reason, on the face of the record, to construe that “No” as signifying an agreement that COM had never recorded anything.
75. [75]
    Then, the next question referred to that part of the first interview where COM said she tried to record the appellant, but he would not do anything.  However, that only referred to one occasion, and because (as COM thought) the appellant had realised what she was doing.  That part of the interview did not purport to extend to other occasions, and the interviewer did not follow that up.
76. [76]
    Then, the highlighted question could well have been understood by COM as meaning that there is now no recording on the phone.  The question plainly uses the present tense.  The question was inarticulate if it was intended to mean there is now and never was any recording.  And no clarification was attempted.
77. [77]
    The penultimate question also contains what the jury could have understood as a denial of what was put, largely because of the way the question was put.  The question was “And you’ve never shown them to [PAL]?”, to which the response was “No”.  As with the highlighted question, on its face COM was disagreeing with what was put.  On the record alone there is no compelling reason to construe that “No” as signifying an agreement that COM had never shown recordings to PAL.
78. [78]
    In my view, the jury may well have understood COM as rejecting the proposition that no recordings were made, and rejecting the proposition that PAL never heard any.  Even so, the highlighted question was unfair to COM given its phrasing in the present tense and absence of clarification.
79. [79]
    Even if that were not right, there is another difficulty confronting acceptance of the appellant’s contention.
80. [80]
    The jury were given directions that:

    1. the elements of the offences must be proved, and the jury did not need to solve every mystery in the trial or be satisfied of the accuracy of every allegation made by a witness;^[99]
    2. what evidence they accepted and what evidence they rejected remained up to the jury;^[100]
    3. it was open to the jury to find a witness to be reliable on some facts but not on others, and to accept some parts of a witness’s evidence and reject other parts from the same witness;^[101]
    4. COM was not a grown woman when she gave her account and so the jury could not assess her as if she were someone that she was not; the jury could take into account her age, her apparent level of understanding and her ability with language;^[102] and
    5. if the jury found that any witness has been inconsistent about something significant then that was a matter that they must take into account; it may affect the witness’s credibility; it was for the jury to decide what effect any differences will have on their overall assessment of that witness’s reliability and credibility; it may have a huge effect, or no effect, or something in between; if the jury found that COM had given significantly different versions, they would need to evaluate her testimony very carefully, having regard to the other evidence that they found reliable.^[103]
81. [81]
    No complaint was made as to the sufficiency of those directions.
82. [82]
    Applying them the jury could have accepted PAL’s evidence that she heard recordings made by COM.  That evidence received some support from PAL’s mother who heard the loudspeaker conversation concerning the fact there was a recording and COM and PAL went to listen to it.
83. [83]
    Another possibility is that the jury concluded that COM never managed to record the appellant doing sexual things, but she did give recordings to PAL who assumed they were something they were not.

84. [84]
    Yet another is that the jury accepted that COM’s evidence amounted to a disavowal of the existence or making of the recordings but understood that to be a statement very much against her own interests, therefore providing a foundation for the jury to otherwise accept COM as an honest and reliable witness.

85. [85]
    Alternatively, the jury may have concluded that whilst COM’s evidence as to the state of the recordings was not reliable, it was not such that it destroyed the credibility of her evidence about the actual offences.  In that respect there were a number of factors that might have been seen as supportive of her credibility in terms of the account she gave of each of counts 2-5, such as:

    1. the preliminary complaint evidence;
    2. there was plenty of opportunity for the appellant and COM to be alone in the house after school;
    3. her lack of clear expression was explicable by her age and embarrassment;
    4. her memory extended to fixing a time for counts 2 and 3 by reference to the school term, that it was on a weekend and what programme was on TV;
    5. the descriptions of the conduct were consistent; and there were little facts that would have seemed unusual if they were not true, such as the appellant removing her shoes;
    6. COM resisted the opportunity, if the accounts were fabricated, to embellish; for example, she said no to the question as to whether his finger went in and out of her vagina; she said the right index finger was “the only finger he uses to do stuff like that”; and, on count 5, COM only said that all that happened was her bottom was rubbed on the outside of her clothes; and
    7. COM did not try to hide her hatred of her biological father, nor that her anger over him was (at least in part) a factor in her inept attempts to kill herself.
86. [86]
    What must be remembered is that the jury, the constitutional arbiter of fact, had the benefit of seeing and hearing the witnesses, but specifically COM and PAL.  They were ideally placed to assess credibility and reliability of such witnesses, whereas this Court is not.
87. [87]
    In my respectful view, whilst there are debating points to be made about the inconsistencies between COM and PAL over the recordings, those inconsistencies were well rehearsed before the jury, and I am unable to conclude that they were thereby compelled to reject COM’s evidence of the offences themselves, or that they should have had such a doubt as to be unable to reach the requisite satisfaction on the question of guilt beyond reasonable doubt.

Ground 2 - misdirection as to what is evidence

88. [88]
    This ground focussed on one passage when the learned trial judge commenced her summing up:^[104]

“You would have picked up a difference between questions put at various points and the way of the response. Sometimes it’s the whole sequence of questions and answers you need to listen to to put it in proper context. For example, – it was put to [PAL] that [COM] had said to her that the accused had raped her, and [PAL’s] answer you might recall was something along the lines was “yeah, that he’d touched her and stuff.”

89. [89]
    The essential contention was that that direction was capable of leaving the jury with the impression from the judge that the evidence was not, in fact, that COM had said to PAL that the appellant had raped her.
90. [90]
    The actual passage of evidence was in PAL’s cross-examination:^[105]

“And is it the case that a couple of months ago – so from today – she told you she could have fallen pregnant with his kid?---Yeah.

And that he raped her?---Yes.

And she told you that it was [the appellant] she could have fallen pregnant to, right?---Yes.

And the conversation went where she said to you, “I think I’m pregnant” and that he – that “Andrew raped me.” Did she say that?---Yeah. [The appellant] did rape – play with her and stuff, yeah.

But I’m asking you she tells you that she think she’s pregnant and that [the appellant] raped her?---Yeah.

And that she thinks she’s pregnant with [the appellant’s] kid?---Yes.”

91. [91]
    In my view, the comment by the learned trial judge did not suggest that the evidence was the contrary of what it was, namely that PAL said COM told her that the appellant raped her.  Nor was there, in my view, a reasonable possibility that the jury might have thought that.  There are three reasons for that.
92. [92]
    First, not long before the summing up commenced the full passage of evidence had been read out to the jury by defence counsel.^[106]  That was done as part of a submission to the jury that PAL was speaking the truth about that and COM was lying.  It is unlikely they would have forgotten the substance of what was said.
93. [93]
    Secondly, the learned trial judge was merely using that as an example to illustrate the point that the whole sequence of questions and answers must be listened to in order to put the evidence in its proper context.  Her Honour was not purporting to give a summary of the whole of the relevant evidence on that aspect.  In my view, there was no reasonable chance the jury would have understood it that way.

94. [94]
    Thirdly, those comments came after the jury were directed that:^[107] (i) they were to determine the true facts by deciding what evidence they accept and asking “when you put it all together, what does the evidence prove?”; (ii) the trial judge’s opinion about the facts was irrelevant; (iii) they must form their own independent view of the evidence as they were the “sole judges of the facts”; and (iv) anything said  by the trial judge was not evidence.

Ground 3 – misdirection as to PAL’s evidence

95. [95]
    This ground focussed on comments by the learned trial judge concerning PAL’s evidence as to what she said she heard on the recordings.  The submission was, in essence:^[108]

    1. her Honour said this:^[109]

“But as for what [PAL] herself heard on the recording, that is a different matter. That - it may tend to corroborate [COM’s] allegations against the accused, depending on whether you find [PAL] reliable, and if so, what you make of what she heard and the evidence that [COM] has given about it. You could not convict on [PAL’s] evidence of the recordings alone because standing on their own, that part of the evidence is not evidence of any of the specific incidents charged …”;

2. and, in relation to the evidence of the recordings:^[110]

“But if you find [PAL’s] recollection of what she heard credible, it is something that you may take into account when determining whether you believe [COM’s] allegations. It is something – it is open to you to find the recordings that [PAL] heard support [COM’s] allegations. Even take – that only after you’ve taken into account the fact that [PAL’s] evidence was that there weren’t any recordings.”

3. the evidence of COM with respect to the recordings was that there were no recordings of the appellant engaging in any sexual misconduct with her, and that she did not give any recordings to PAL;
4. therefore, it could not be possible that the evidence of PAL, with respect to hearing something that was supposedly recorded, could in any way support the evidence of COM; and
5. even if PAL’s evidence was to be believed, that she was given some audio recordings by COM, they were not audio recordings of any wrongdoing by the appellant; that being the case, that evidence could not be used to support the evidence of COM.

96. [96]
    In my respectful view, this contention should not be accepted.  As discussed above in relation to Ground 1, the jury were not bound to accept that COM made no recordings, nor that she did not give any recordings to PAL.  It was open to the jury to accept PAL’s evidence that she received some recordings and listened to them.  Once that was the case, it was for the jury to assess what they accepted as to PAL’s account of the content of those recordings.
97. [97]
    According to PAL’s evidence she could hear things such as:

    1. COM saying: “don’t push me”,^[111] “stop touching my butt”,^[112] “don’t touch me”,^[113] “don’t kiss me”,^[114] “don’t play with me”,^[115] “you’re squeezing me”,^[116] and “No. Go away”;^[117]
    2. the appellant saying: “he likes it”,^[118] “baby”,^[119] and “come here”;^[120] and
    3. sounds of pushing, running and groaning.^[121]

98. [98]
    If the jury accepted that the recordings contained both the appellant’s voice and COM’s voice, and that they recorded the things set out above, that evidence was potentially corroborative of COM’s account of the sexual offending against her.

99. [99]
    The relevant passage from the summing up came after the jury were told that preliminary complaint evidence, if accepted, could only go to bolstering COM’s credit.  Then her Honour said:^[122]

“But it is not evidence of – that the offence actually occurred. What – that conversation outside a court and outside of the recordings of the court and the police the recording, that is a different matter. That – it may tend to corroborate [COM’s] allegations against the accused, depending on whether you find [PAL] reliable, and if so, what you make of what she heard and the evidence that [COM] has given about it. You could not convict on [PAL’s] evidence of the recordings alone because standing on their own, that part of the evidence is not evidence of any of the specific incidents charged, and it doesn’t prove the identity of the accused beyond reasonable doubt.

So it doesn’t – it doesn’t – it couldn’t prove that the accused engaged in those specific acts on counts 2 to 4 – 5 – or that he maintained a sexual relationship. It might be one interpretation that’s open of the things that [PAL] described hearing, but without it – that account from [COM], without [COM] explaining, you might have other possibilities, and the defence have suggested that it could be manufactured, that she could have taped herself. I suppose the argument is she might have taped herself pretending or set up something that was not sexual. But if you find [PAL’s] recollection of what she heard credible, it is something that you may take into account when determining whether you believe [COM’s] allegations. It is something – it is open to you to find the recordings that [PAL] heard support [COM’s] allegations. Even take – that only after you have taken into account the fact that [COM’s] evidence was that there weren’t any recordings.

In your consideration of whether or to what extent you can rely on [PAL’s] evidence about those recordings, you must take into account some of the limitations of that evidence. And I’ve already talked about [COM’s] own account.”

100. [100]
     The jury was directed that the evidence from PAL was capable of corroborating COM’s account, but it could only do so if the jury found PAL to be a reliable witness, and, as well, after the jury had assessed what they found as to the content of the recordings.  It was only on the basis of acceptance of PAL’s evidence that the jury would follow that course.
101. [101]
     In making their assessment about PAL’s reliability the jury were directed to consider COM’s evidence as to the state of the recordings, especially if they concluded that COM did not record anything, or did not give anything to PAL.  That point was emphasised twice in the passages referred to in paragraph [99] above.  The jury was also directed that PAL’s evidence was not capable of standing alone in proof of the specific counts, but rather, generally corroborative of COM’s evidence.

Ground 4 – failure to give a Robinson direction

102. [102]
     Counsel for the defence sought that a Robinson direction be given to the jury.  There were two bases for the application.  One was the conflict between COM and PAL about whether recordings were made and given to PAL.  The second was the evolving nature of the complaints and inconsistencies in COM’s evidence.  The learned trial judge declined to give the direction.
103. [103]
     The appellant contended^[123] that a direction should have been given because the conflicting evidence between COM and PAL with respect to the recordings would be sufficient to give rise to “a forensic disadvantage” as the appellant was unable to examine any recordings PAL said she had heard, against the background of COM denying she had made such recordings.
104. [104]
     The source for a Robinson direction, generally in terms that it is unsafe to convict the accused on the uncorroborated testimony of one witness, is the decision in Robinson v The Queen.^[124]
105. [105]
     In R v Reynolds^[125] this Court considered the circumstances when a Robinson direction might be required:

“[38] A Robinson direction is intended to ensure that the accused receives a fair trial. In determining whether to issue a Robinson direction, trial judges must eschew mere reliance on factual similarities, and examine the underlying principle expressed in Robinson v The Queen. As held in Robinson, the direction is required in circumstances which would give rise to a perceptible risk of a miscarriage of justice. Notwithstanding the undoubted accuracy and wisdom of this statement, this formulation is relatively unhelpful, as reasonable minds may differ regarding the circumstances which may give rise to a “perceptible risk of a miscarriage of justice”, and it provides limited clarity on the nature of the risk which attracts the Robinson direction.

[39] The functional purpose of the Robinson direction is to convey to the jury the importance of cautiously scrutinising the evidence of the complainant. As the Robinson direction is of a special and exceptional nature, it will generally only be required in circumstances where the factual matrix giving rise to the “perceptible risk” is outside the ordinary experiences of the jury. Accordingly, although not a substitute for the “perceptible risk” test, a cogent indicator of the need for a Robinson direction is the existence of a forensic disadvantage to the accused emanating from the factual matrix which is perspicuous to the trial judge, but not necessarily to lay members of the community.

[40] The forensic disadvantage may possess any number of potential sources. It may derive, as it did in Robinson, from the intercession of a substantial interval of time between the alleged offending and the trial, which prejudices the capacity of the accused to mount an effective defence. It may, in certain circumstances, emanate from a special quality of the complainant whereby they are susceptible to fantasy about sexual matters. It may also derive from circumstances where the complainant was exceptionally suggestible and may have been subject to coaching or persuasion. Regardless, the appellant must identify a peculiar or exceptional factor which prejudiced their entitlement to a fair trial.”

106. [106]
     In my view, the circumstances are not such that a Robinson direction was required.  Put another way, the absence of a Robinson direction did not cause a miscarriage of justice.
107. [107]
     The conflict between the evidence of COM and PAL with respect to the recordings was obvious from the outset and central to the defence attack on both COM and PAL as being liars.  From the moment the jury heard and saw PAL’s evidence they were appraised of the fact that, contrary to one view of COM’s account, PAL said there were recordings, that she heard them, and deleted some when COM suggested she do so.
108. [108]
     That the recordings no longer existed was also obvious, as was the fact that their absence meant they could not be examined.  The postulated “forensic disadvantage” by being unable to examine any recordings was something well within the comprehension and normal experience of the jury.
109. [109]
     The jury plainly accepted COM as an honest and reliable witness.  In order to reach that point they had to grapple with the conflicting evidence of PAL as to the recordings.  Each side had dealt with those matters in address, and they were explored in detail in the summing up.  Nothing about that took matters to the point where either the conflicting evidence itself, or the inability to examine the deleted recordings, meant there was a factual matrix which was perspicuous to the trial judge, but not to the jury.  Put another way, the factual matrix giving rise to the suggested “perceptible risk” was not outside the ordinary experiences of the jury.
110. [110]
     Except for some evidence that COM attended a special school for a short period before she entered prep, there was no evidence to suggest that there existed some special quality to her that would impact on her credibility.  True it is that she was accused of being a liar and having made up the allegations but that is nothing out of the ordinary in such a case.  Juries deal with such matters every day of the week.
111. [111]
     Further, the evolution of COM’s complaints, suggesting as it does, an improving memory, is not a unique feature of witness testimony either.  The fact that one interview prompts a greater recollection is an ordinary experience of human reaction.
112. [112]
     Finally, all the matters raised as the grounds for giving a Robinson direction were matters upon which reliance was placed in addresses and the jury were reminded of them in the summing up.  They were prominent, easy to comprehend, and central to the question which the jury had to decide.
113. [113]
     For the reasons given above the appeal must be dismissed.  I propose the following order:

     1. Appeal dismissed.
114. [114]
     BOND JA:  I agree with the order proposed by Morrison JA and with his Honour's reasons for doing so.  I also agree with the additional observations made by Applegarth J concerning ground 1.
115. [115]
     APPLEGARTH J:  I agree with the reasons of Morrison JA and with the proposed order.  I add the following about the unreasonableness ground of appeal.
116. [116]
     A focus of the appellant’s submission that the verdict was unreasonable was on the difficulty of reconciling:

     1. the complainant’s evidence about her attempts to record on her phone occasions when the appellant was “acting sexually”^[126] with her; and
     2. her friend’s evidence about what she recalled hearing on audio recordings.^[127]
117. [117]
     The evidence about the recordings was unsatisfactory and hard to reconcile.  One distinct possibility is that, although the complainant recorded conversations, she did not think that she managed to record the appellant “acting sexually” with her.  This is not necessarily inconsistent with the friend’s recollection of hearing the appellant say on a recording something like “don’t touch me”, since such words do not necessarily refer to sexual touching.  The friend may have thought these recorded the appellant engaging in sexual wrongdoing while the complainant did not think that they were sufficient proof of sexual misconduct.
118. [118]
     Another possibility is that the friend’s recollection of what was recorded was assessed by the jury as being unreliable, and therefore not damaging to the complainant’s credibility or reliability.
119. [119]
     Further, if the jury could not decide whether the complainant’s evidence or her friend’s evidence about the recordings was the more reliable, the jury, acting reasonably, might have placed that evidence to one side and returned to the balance of the evidence.  That evidence was sufficient to cause the jury to not have a reasonable doubt about the defendant’s guilt.
120. [120]
     Overall, actual or apparent inconsistencies between the evidence of the complainant and the evidence of her friend about the recordings did not require a jury, acting reasonably, to have a reasonable doubt about the credibility or reliability of the complainant’s evidence about the sexual abuse she experienced.
121. [121]
     The same conclusion applies to the inconsistency between the complainant’s evidence that she was concerned about the possibility of being pregnant and her friend’s recollection of this conversation.  The complainant did not suggest that the appellant had engaged in penile penetration.  She told her friend that she had been raped by the appellant, but her evidence at trial made it clear that she did not mean that he had put his penis into her vagina.  Instead, she meant that he sexually harassed her by being touched inappropriately on her “private parts”.^[128]  The appellant accepted that she told her friend that she might have been pregnant, but the complainant thought that she might be pregnant to someone other than the appellant.  She did not think that she might be pregnant to the appellant for the simple reason that they never had sexual intercourse.
122. [122]
     The inconsistency between her evidence and the evidence of her friend is capable of a simple explanation.  The friend misunderstood what the appellant was intending to convey and inferred that the complainant was worried about the possibility of being pregnant as the result of being raped by the appellant.  The jury might easily conclude that there was a simple misunderstanding.  The friend’s evidence was not of a kind that should have caused the jury to have a reasonable doubt about the complainant’s credibility or reliability.
123. [123]
     Finally, insofar as the appellant relies upon the combination or accumulation of arguments that are said to reflect upon the credibility or reliability of the complainant, each matter is satisfactorily explained.  Taken together, they do not lead me to conclude, upon the whole of the evidence, that by reason of inconsistencies, discrepancies or other inadequacy, the jury, acting rationally, should have entertained a reasonable doubt as to proof of guilt.  I am satisfied that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.