R v NAC[2022] QCA 120

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  The appellant pleaded not guilty to maintaining an unlawful sexual relationship with a child under 16 (count 1), indecent treatment of a child under 16, who was under 12 and under the appellant’s care (count 2), two counts of rape (counts 4 and 5), and two counts of indecent treatment of child under 16 who was under the appellant’s care (counts 3 and 6).  After a trial in the District Court the jury found the appellant guilty of all counts.  He was sentenced to 10 years imprisonment on count 1, with the mandatory declaration that the conviction on that count was a conviction of a serious violent offence.  Lesser concurrent terms were imposed upon the other counts.
2. [2]
   The appellant has appealed against conviction and applied for leave to appeal against sentence.  He appeared for himself in this Court.

Conviction appeal

3. [3]
   The grounds of the appellant’s appeal against conviction are:

1. The verdict is unreasonable or cannot be supported having regard to whole evidence.
2. There has been a miscarriage of justice.  A jury member was discharged for not being impartial and speaking outside the trial.  As a result the jury was tainted and a fair trial was not conducted.
3. The appellant was not afforded a fair lawyer or barrister who explained how a trial was conducted.

4. [4]
   Count 1 alleges that the period during which the appellant maintained an unlawful sexual relationship with the complainant was between a specified date in 2007 and a specified date in 2015.  In that period the complainant was aged between six and 14.  Her brother (“A”) was a bit less than two years younger.  The complainant’s mother started seeing the appellant in about 2005 (when the complainant was about four).  Thereafter they had three children, “B” (who is about six years younger than the complainant), “C” (who is about eight years younger than the complainant), and “D” (who is more than 11 years younger than the complainant).  The complainant’s mother and the complainant gave evidence that the complainant called the appellant “dad”.
5. [5]
   The complainant’s mother gave evidence to the following effect.  In 2006 she and the appellant, together with the complainant and A moved into a street, which I will call “X Street”, where they stayed for about six months.  B was born during that period, shortly after the complainant turned six.  (B’s date of birth is the commencement date of the offence period charged in count 1, and it is the commencement date of the period in which count 2 was alleged to have been committed.)  They moved from X Street to a place I will call “the Y house” in 2007 (when the complainant was still six).  B was then a very small baby.  C and D were born during the period of five or six years when the family lived at the Y house.  They moved from the Y house to a place I will describe as “Z Valley” when D was a young baby, so perhaps about 2013 (the year when the complainant turned 12).  The family lived together at Z Valley until about 2016, when the complainant’s mother and the children left the appellant.
6. [6]
   The evidence of the complainant adduced at the trial in August 2018 was contained in a recording of a police interview on 10 August 2016 (when she was 15), a written statement she executed under s 110A(6C)(c) of the Justices Act 1886 (Qld) on 27 February 2018 (when she was 16), and pre‑recorded evidence she gave in June 2018 (when she was nearly 17).
7. [7]
   The particulars of count 2 are that it occurred at the X Street house, the appellant touched the complainant’s genitalia indecently with his hand, and the complainant described this as “doll” time in the police interview.  In the police interview, after some introductory questions, the complainant was asked to tell the interviewing police officer everything about who the appellant was.  The complainant said, the appellant and the complainant’s mother “had [B] and we lived in [X Street] (sob).  That’s when he started doing stuff”.  According to the uncontroversial evidence of the dates of birth of the complainant and B, the complainant was then aged six.
8. [8]
   The complainant continued, “(sobbing) An ’cause I was only little I thought it was normal.  That’s why it’s taken me so long to tell someone (sobbing)”.  After the complainant described the appellant and responded to a question about the last time the complainant saw the appellant, the police officer asked the complainant to tell her more about X Street when the appellant started doing stuff.  The complainant said the appellant started coming in her room at night, tried to touch her, and then they moved house and he still tried to do it.  After answering questions by the police officer about the last time that happened - the complainant said it was in August or September 2015 - the police officer again asked the complainant about the first time.  She again responded that it was in X Street.  The complainant said the appellant pretended to tickle her but he was grabbing her vagina.
9. [9]
   The complainant said she had “just turned fourteen when it happened before basketball training” (a reference to count 3) “and then the first ever time” (a reference to count 2) “I was like, eight; ’cause [B] was just four and we moved into our new house”.  In the complainant’s immediately following answer to a question about who lived at the house, she referred to her mother, the appellant, A “and [B] just came home from hospital”; as I have mentioned, the complainant was six when B was born.
10. [10]
    The complainant described the appellant grabbing her vagina and rubbing his fingers up and down whilst pretending to tickle her.  She thought this occurred in her room whilst her mother was feeding B in the loungeroom.  The appellant came to her room when she was playing with her dolls, picked her up under her arms, put her on his hip, moved her closer to him, and started grabbing her vagina.  He tickled her under the arms at the same time, so she was laughing.  He left because his friend was there.  Subsequently in the interview the complainant agreed with the police officer’s description of how she had demonstrated to the police officer that the appellant had grabbed her vagina on the outside of her underwear.  In the complainant’s statement, she repeated that at X Street the appellant started touching her and grabbing her, making out that he was tickling her when he was touching her vagina.
11. [11]
    In relation to other sexual misconduct by the appellant at X Street, in the complainant’s statement she said that, nearly every two nights during the six months they lived at that house, the appellant would come into her room to say goodnight, put his hands down her pants and underwear, rub his fingers on her vagina, and then put his fingers into her vagina whilst she unsuccessfully tried to pull his arm away.
12. [12]
    The particulars of count 3 allege it occurred at the Y house, the complainant recalled her brother (A) and sister (B) were home and her mother was not, A was playing basketball outside, the complainant was taken into a bedroom, and the appellant touched her genitalia with his penis and ejaculated on her.
13. [13]
    In the police interview, the police officer asked how many times the appellant tried to put his hand down.  The complainant referred to the appellant having done that every time her mother went to the shops.  The police officer asked the complainant to tell her as much detail as possible about one of those times.  The complainant referred to the occasion (count 3) when she and A were outside playing basketball after school and A was getting ready to go to basketball training.  As soon as their mother left for the shops, the appellant told her to go inside.  B tried to follow but the appellant would not let her inside and he locked the door.  The appellant grabbed her hand and made her go into his and the complainant’s mother’s bedroom.  He took her phone from her so she could not call her mother.  The appellant lay her on the bed, took her pants off and pulled his pants down, and tried to have sex with her.  She kept moving and pushing him away.  The appellant spread her legs apart and held onto them so she could not move, he put his penis on top of her vagina and rubbed it over her and over her vagina, masturbated himself, and ejaculated over her stomach.  The complainant gave a detailed description of those events.  The appellant got a towel, cleaned the ejaculate off her, and told her go and play with the kids.  She went to her room, crying.  The complainant said this was in 2015 and they had moved into Z Valley something like six months beforehand.  The complainant’s statement includes general descriptions of the appellant engaging in similar conduct at both the Y house and Z Valley.
14. [14]
    In the complainant’s police interview she did not refer to the allegations of rape charged in counts 4 and 5.  Those counts and the particulars of them reflect parts of the complainant’s 2018 statement.  In that statement the complainant also referred to other sexual misconduct.  She said that when she lived at the Y house, the appellant continued what he had been doing at X Street but it gradually got worse.  The appellant started coming into the bathroom when she was having a bath, whilst her mother and the other children were in the loungeroom.  The appellant would make her do things, like seeing if she could touch her elbows together behind her back, then he would rub her vagina.  She tried to get him away but he would not go.  When the complainant’s mother went to the shops or to work, the appellant would look after the children until she arrived home.  The appellant would make sure the children were playing and occupied.  Then he would ask the complainant’s help for something and walk into the bedroom.  The appellant shut and locked the door behind the complainant, put a towel on the bed, put the complainant on the bed and took her pants and underwear off.  The appellant started touching her vagina.  She told him to stop and she tried to push him away but he was too strong for her.  The appellant took his clothes off and masturbated in from of her, and he ejaculated on her stomach.  He engaged in that conduct for about four or five years whilst they lived in the Y house.  The complainant made similar statements about sexual misconduct by the appellant at Z Valley.
15. [15]
    Counts 4 and 5 were alleged to have been committed on the same occasion at Z Valley.  The complainant’s mother was out at the shops.  The appellant went into her room with a towel while the children were playing outside.  The appellant locked the doors, put the towel on the bed, and tried to put his hands down the complainant’s pants.  She told him to get out and stop.  She tried to move his hand and arm away but he kept on doing it.  He put his hands down her pants and underwear and started to rub his fingers on and in her vagina.  The appellant pulled the complainant’s pants and underwear down and took his pants and underwear off.  He rubbed his penis on the outside of the complainant’s vagina.  He licked on the inside and the outside of her vagina (count 4).
16. [16]
    The appellant prevented the complainant from moving away by holding her arms.  He kept trying to put his penis inside her vagina.  The top half of his penis entered her vagina (count 5).  The complainant was crying.  The appellant said he was showing what boys will do to her and he was being gentle.  The complainant kept crying.  The appellant left after she yelled at him to get out of her room.  The complainant continued to cry because her vagina hurt.  The complainant was still in pain after her mother returned home about 15 minutes later.  She went to the toilet and found there was blood on her vagina.  That was before her first period.
17. [17]
    In the police interview the complainant said she was 14 the last time it happened (count 6), which was in 2015 around August or September (which she remembered because it was close to school holidays).  The complainant’s sister, B, was in the complainant’s bed with her.  The complainant was lying closer to the door.  The complainant awoke to the appellant lying next to her, touching her, and sweating a lot.  He was not wearing a shirt.  The appellant was under the blanket, as was the complainant.  When the complainant awoke, the appellant’s hand was almost down her pants.  She tried to push him away.  She was making a noise and the appellant told her to be quiet.  The appellant’s hand was initially underneath her pants and on top of her underwear near her vagina.  The appellant kept pushing his hand down.  He got his hand in her underwear on her vagina.  He was trying to put his fingers in.  The complainant’s mother turned the hallway light on from near her room.  The appellant got up and walked out the door as the complainant’s mother was about to come in.  The complainant’s mother said something like, “What are you doing?” The appellant said he was sleepwalking.  The complainant’s mother did not come into the complainant’s bedroom. B remained sound asleep.  After the appellant walked out of the room, following the complainant’s mother, the complainant lay back down.  She was crying.
18. [18]
    In the complainant’s statement she described similar “sleep walking” conduct of the appellant on a different occasion.  One morning, the appellant arrived home and lay on the lounge, and the complainant’s mother then went to bed.  The appellant went into the complainant’s room and lay in her bed.  When the complainant’s mother walked down the hallway the appellant pretended to be asleep.  The complainant’s mother “came in and asked him why he was in my bed and ‘woke’ him up”.  The appellant responded he must have been sleepwalking, he got up, and he went back to the lounge.
19. [19]
    In cross-examination directed to the complainant’s evidence of count 6, the complainant agreed the appellant was not still in the bed when the complainant’s mother arrived at the door of the room.  When it was put to her that he was not in the bed with a hand on her breast, the complainant stated that “this sleepwalking” happened on more than one occasion.  She agreed she had not described the appellant being in her bed with a hand on her breast in her police interview or in her statement.
20. [20]
    In the complainant’s police interview, she described the circumstances when she first disclosed the appellant’s conduct to her mother.  She told the police officer the last time she saw the appellant was about 10 months before the police interview.  The complaint was self-harming when the appellant walked into the room.  The appellant pulled all her clothes off and started hitting her.  The complainant’s mother came in and tried to stop the appellant.  He kept hitting the complainant and he started hitting her mother.  The complainant yelled she was going to tell her mother.  The appellant asked what she was going to tell and he started trying to hit her again.  The complainant gave evidence that her mother asked what she was going to tell her.  The complainant did not want to say it.  She wrote it on a piece of paper.  The complainant’s mother became angry at the appellant.  He said it was just because the complainant was trying to break them up.  The same night, the appellant kicked the complainant, her mother, and the children out of the house.  On the next day the complainant got on a bus to Tamworth.
21. [21]
    Subsequently in the police interview the complainant was asked who she had told about what had happened.  The complainant said she had told her mother in the letter she had written to her.  The complainant added that at first her mother did not believe her and the complainant guessed that is why it kept happening.  The complainant was asked again about when she wrote the letter.  After first referring to September, the complainant said she had written the note in the old house – the Y house – and then they moved and the complainant’s mother did not believe her, but her mother started to believe her when the appellant started saying he was sleepwalking.  The complainant said it was in 2013 when she wrote the letter in the Y house.  She put the letter on her mother’s bedside table.  The trial judge gave the jury conventional directions that this preliminary complaint was not evidence of the truth of statements in it and could be taken into account only in so far as consistencies or inconsistencies between it and other evidence might support or adversely impact upon the reliability of the complainant.  The complainant had not told anyone else because she did not have the courage.  Since she had left the house, she had told a cousin.  (The cousin was not called to give evidence.)  The trial judge directed the jury that in these circumstances the complainant’s evidence of complaining to her cousin would not assist the jury at all in their consideration of the charges.
22. [22]
    The main themes in defence counsel’s cross-examination of the complainant were that the appellant had not engaged in any sexual misconduct against the complainant, she had discussed her allegations with her mother, and her allegations were motivated by the separation of the appellant and the complainant’s mother and concern about custody of the children.  The complainant did not accept and appeared to be upset by defence counsel’s suggestions to that effect.  She adhered to the substance of her evidence of the charged offences.  Defence counsel referred the claimant to statements in her police interview in which she confirmed there were no incidents other than those she mentioned in that interview and that the touching was always on the outside of her vagina.  The complainant agreed she added reference to a lot of incidents in her subsequent statement to police, including the statements upon which counts 4 and 5 are based.  She said that she was uncomfortable when she spoke with police in August 2016 and she did not remember hearing anything about potential or feared custody disputes that might involve B, C and D.  The complainant said she did remember that on an occasion when her mother was trying to leave the appellant, her mother said if she did leave he and his grandmother were going to try to get custody of the three children.
23. [23]
    The complainant’s brother, A, participated in a recorded police interview on 10 August 2016, when he was 12 years old.  He made various statements that were consistent with statements made by the complainant, including that when their mother was out shopping the appellant would look after the children.  He gave evidence that he witnessed three specific incidents:

    1. (a)
       Whilst they were living at the Y house, there was an occasion when his mother was at the shops with the children other than him and the complainant.  A was looking for the appellant to ask him if he could have a drink.  After looking in many places in and around the house, he heard a noise in the complainant’s bedroom.  A said there was something inside the room stopping the door from opening.  He pushed the door open, which pushed over something behind the door.  He saw the appellant with his pants down in front of the complainant.  The complainant was trying to get up.  She was trying to push the appellant out of the way.  The appellant kept pushing her back.  The appellant told A to “get out now”.  He said, “you better not tell your mum or you will get belted”.  A did not tell his mother until after she had left the appellant.
    2. (b)
       A referred to something similar happening at Z Valley.  A was playing basketball when the appellant came outside and told the complainant she had to go in and do some jobs for her mother.  A went inside to see if he could help the complainant with what he thought was a job she had to do.  A discovered the appellant was in his mother’s bedroom.  The door to the bedroom was jammed shut with a shoe and something else at the bottom of the door.  A went outside and looked through a window into the bedroom.  The complainant was sitting on the bed.  The appellant was pulling his pants down until A knocked on the window.  A’s mother then pulled up in the driveway.  The appellant told A not to tell anyone.
    3. (c)
       A referred to an occasion in the kitchen at Z Valley when he saw the appellant trying to “finger” the complainant.  B said something to her mother, who was trying to ask the complainant whether it happened but the appellant started talking.  The appellant belted B because she had told her mother.  The appellant denied it happened.  He told the children’s mother that if she was going to keep asking questions she could leave the house with the children.  They did leave the house and they stayed in a motel.

A rejected the suggestion put to him by defence counsel that he had lied about those incidents.

24. [24]
    B participated in a police interview on 10 October 2016.  She was then aged nine.  She stated that when the appellant was angry she used to stay in the complainant’s room on a double mattress with the complainant.  She also said the complainant had her double bed.  Subsequently B said the complainant slept on the double bed and she (B) slept on the floor with D on occasions when D also slept in the complainant’s room.  B then said she never slept in the double bed but slept on the mattress on the floor.  B gave pre-recorded evidence when she was aged 10.  In examination in chief, she confirmed she had sometimes slept in the complainant’s room and she had not slept on her bed.  In cross-examination she again confirmed she had slept on the mattress on the floor.
25. [25]
    Upon that topic, the complainant’s mother gave evidence that when the family first moved into Z Valley the complainant had a single bed for a period, until she was given a double bed for her birthday at some point in her teenage years.  B would sometimes sleep in the complainant’s room with the complainant, sometimes on the bed and sometimes on a spare mattress.
26. [26]
    The complainant’s mother gave evidence of an occasion at Z Valley when she went to bed after the appellant had fallen asleep on the lounge.  After she heard the sound of the fridge opening and a soft drink bottle opening, she heard the fridge door shut.  No more than about 30 to 45 seconds later she heard a creak on the complainant’s bedroom door.  She got out of bed and walked to the complainant’s room, a distance of about five metres, using the torch on her phone to show the way.  She shone the torch into the bedroom and saw the appellant on the bed.  The appellant was lying next to the complainant, who was closest to the wall, with no blankets on them.  The appellant had his hand up the complainant’s singlet on her breast and the complainant was asleep.  The complainant’s mother screamed at the appellant, waking up the complainant.  The appellant took his hand out of the complainant’s shirt and said he must have been sleepwalking.  The complainant’s mother spoke to the complainant the next day.  The complainant said she did not know what was happening.  In cross-examination, the complainant’s mother agreed that she did not turn any light on, she did not put on shoes, and there was carpet on the tiles in the hallway.  The complainant’s mother rejected suggestions by defence counsel in cross-examination which challenged her evidence of this event.
27. [27]
    The complainant’s mother gave evidence that a few days after that event she heard the appellant and the complainant arguing, in the course of which the complainant yelled, “If you don’t stop, I’m telling”.  The complainant’s mother confronted the complainant and asked her what she was going tell.  On the same day, probably an hour or so later, the complainant’s mother found in her side table a note from the complainant.  A photograph of the note was in evidence at the trial.  The note reads, “Every time you used to go to the shop he would touch me there, end of story.  Don’t talk about it to me or him and give me my phone if you don’t” (sic).  This occurred some time in 2015.  The complainant left Z Valley a week or two later.  The complainant’s mother and the other children left in March 2016.
28. [28]
    In relation to opportunity to commit the alleged offences, the complainant’s mother gave evidence that the appellant asked her to buy him things from a fast food shop a lot, which meant that she would be away from the house for a minimum of 20 minutes on each occasion.  She also referred to one occasion when she returned home from the trip, saw her daughter B run to the laundry door and knock on it, and then she saw through the glass laundry door the appellant unlocking that door.  (The prosecution submitted that this evidence was broadly consistent with the complainant’s evidence about the appellant locking the children other than the complainant out of the house.)
29. [29]
    The complainant’s mother gave evidence that, at an unidentified time, the complainant disclosed to her how the complainant felt when the appellant used to touch her and used to make her touch him.  The complainant was very emotional, said she wanted to talk to police about it, and the complainant’s mother did not push the complainant.  In cross-examination the complainant’s mother agreed the complainant spoke of the appellant touching her in a sexual way and also about the complainant having to touch the appellant.
30. [30]
    The prosecution adduced in evidence the recordings of two pretext phone calls from the complainant to the appellant on 5 September 2016.  In the first conversation, the complainant told the appellant that she was trying to get past the stuff he had done to her, and she referred to the appellant taking her in the room all the time when her mother would go to the shops.  The appellant replied, “I’m not sure what I should be saying [complainant].  I don’t know what to say.  I, I hear from you for the first time in like, so long and then that gets brought up upon me.”  The complainant said that she just wanted to know why the appellant did it.  He replied, “I’ll talk about that personally, I won’t talk about it over the phone”.  The prosecution relied upon those statements as implied admissions.  When the complainant subsequently repeated her question asking why the appellant did all of the stuff to her, the appellant hung up.
31. [31]
    At the commencement of the second telephone conversation, the appellant said that it was probably not a good time to talk because the Queensland Police Service and everyone else were probably listening in at the same time because the complainant’s mother was trying to frame him.  In the subsequent conversation the appellant denied having done anything wrong and told the complainant that she was also trying to frame him.  Defence counsel relied upon the appellant’s exculpatory statements.  The prosecution relied upon recorded statements by the appellant to the effect that he denied having participated in the previous telephone call with the complainant and he denied having added someone else to the second telephone call (although, towards the end of the conversation, the telephone call includes a record of a third person telling the appellant to hang up.)
32. [32]
    Joint admissions were made at the trial about concerns by the complainant that the appellant might obtain custody of the children.  On 9 April 2018, an identified person received a text from the complainant stating, “I’m not on drugs and I don’t know why your telling people that because [the appellant] could get custody of the kids if he heard that”.  The complainant “replied that she was not mad” and texted that the person would be required to a witness statement about the appellant.  It was also jointly admitted that an entry in police records dated 6 September 2016 recited a conversation between the complainant’s mother and a police officer referring to the following:

    1. (a)
       The complainant had mentioned to her mother that B had said that, when she was younger, a younger brother of the appellant had touched her at the park.
    2. (b)
       The complainant’s mother stated the appellant was contacting a friend of hers, who was keeping her up to date with what the appellant was saying, and “they are going to go for grandparent custody because [the appellant] can’t go for custody”.
33. [33]
    The appellant did not give or call evidence.

Ground 1: The verdict is unreasonable or cannot be supported having regard to the whole of the evidence.

34. [34]
    Ground 1 requires the Court to conduct an independent examination of the whole of the record of the trial to determine whether it was reasonably open to jury to be satisfied of the appellant’s guilt beyond reasonable doubt.
35. [35]
    The Crown’s particulars of the specific offences alleged in counts 2-6 reflect statements made by the complainant in her evidence about the appellant’s conduct.  In addition, the complainant described in more general terms sexual misconduct she said the appellant had committed on numerous occasions and at the three different houses in which the family lived during the period between the specified dates in 2007 and 2015 when she was aged between six and 14.  The particulars of count 1 describe the nature of that alleged sexual misconduct and state that counts 2-6 were also examples of the acts alleged against the appellant.
36. [36]
    For count 1, maintaining an unlawful sexual relationship with a child under 16, the element of that offence that the appellant was an adult was admitted.  The element that the complainant was a child under 16 during the period of the alleged offence was proved by uncontroversial evidence of the date of birth of the complainant.  The element of an “unlawful sexual relationship” was defined to mean a relationship that involved more than one unlawful sexual act over any period.^[1]  The specific offences charged as counts 2 – 6, as well as the other sexual offences upon which the Crown relied for count 1, fall within the definition of “unlawful sexual act”.^[2]  Upon the evidence of the complainant, the appellant regularly committed numerous such acts during the period in which count 1 was alleged to have been committed.  The remaining element of the offence, that the adult “maintains” an unlawful sexual relationship with the child, required proof of continuity or habituality of sexual conduct, rather than merely isolated incidents.  The evidence of the complainant, if accepted, could readily be regarded as fulfilling that element.
37. [37]
    The offence of indecent dealing charged in count 2 differs from the same offence charged in counts 3 and 6 only by the circumstance of aggravation pleaded in count 2 that the complainant was under 12 at the time of that offence.  Upon the evidence of the complainant and her mother, the complainant was much younger than 12 when count 2 was allegedly committed.  Otherwise, the elements of counts 2, 3 and 6 required proof that the appellant dealt with the complainant, the dealing was “indecent”, and it was “unlawful”.  The evidence did not raise any issue about the unlawfulness of any indecent dealing established by the prosecution.  It was not a real issue at trial and it could not seriously have been in issue that all of the sexual misconduct described in the complainant’s evidence amounted to indecent dealing.  Counts 2, 3 and 6 also allege the circumstance of aggravation that the appellant had the complainant under his care for the time being.  The complainant’s evidence that the appellant was the only adult with her at each relevant time was readily capable of fulfilling that element if that evidence were accepted.  In relation to the offences of rape charged in counts 4 and 5, the complainant’s evidence, if accepted, unequivocally established the element of penetration (of the different kinds required for those counts^[3]) and the element of absence of consent required for each count.
38. [38]
    Although some evidence could be regarded as supplying support for aspects of the complainant’s evidence, the Crown case on each offence ultimately depended upon the jury accepting the complainant’s evidence of the offence as being both honest and reliable beyond reasonable doubt upon the elements of those offences.
39. [39]
    The appellant argued the complainant changed her story on numerous occasions and gave differing accounts of when the offending took place.  There are some discrepancies and inconsistencies in the evidence, but it does not necessarily follow that any of the verdicts are unreasonable; it is part of the jury’s role to take such matters into account when evaluating the evidence.
40. [40]
    The trial judge drew the most relevant discrepancies or inconsistencies in the evidence to the jury’s attention when summing up:

“You will need to scrutinise the complainant’s evidence with great care before arriving at a conclusion of guilt.  The reason for this is that you cannot convict the defendant unless you accept the complainant’s evidence is both reliable and truthful beyond reasonable doubt in relation to the elements of the specific counts.

When assessing whether you can accept the complainant’s testimony beyond reasonable doubt, you should consider the following aspects of the evidence.  It is clear from the evidence that the complainant and [the complainant’s mother] were concerned with the defendant applying to get custody of the three children.  So much was evident in some of the answers that the two witnesses gave.  This concern was also independently captured in the complainant’s text message to … on the 9^th of April 2018, and [the complainant’s mother’s] telephone call with the police on the 6^th of September 2016.

The delay between the time of each alleged incident and the time the defendant was told of the complaint is a relevant matter for you to consider.  It is alleged that the sexual abuse commenced as early as June 2007.  The last occasion is said to have occurred in August or September 2015.  Despite that, it appears as though the defendant was only alerted to the allegations on the 5th of September 2016.

The difference between the accounts of the complainant is also a matter for you to consider.

The complainant wrote a note to her mother saying: “every time you used to go to the shops he would touch me.”

Later the complainant told her mother that she would have to touch the defendant and the defendant would touch her.  However, the complainant did not say to the police or testify in court that she would have to touch the defendant.  Further, the complainant originally told the police that the offending did not involve actual penetration of the vagina and, in addition to that, the complainant did not tell her mother or any other witness that the offending involved penetration of her vagina.  Despite that, the complainant alleged in her third statement to the police, multiple different acts committed by the defendant which involved penetration of the vagina.

Further, another matter for you to consider is the fact that the complainant was not medically examined.  Further, you should consider the difference in accounts between the complainant, her brother and her mother.  Also the only potential support for the complainant’s allegations is to be found in the evidence given by her mother and her brother, both of whom potentially, depending on the view you take of it, have a motive to lie.

You should only act on the complainant’s evidence if, after considering it with this warning in mind, and all of the other evidence, you are convinced that it is truthful and accurate beyond reasonable doubt.  If, having carefully scrutinised the complainant’s evidence, you are satisfied that it is truthful, accurate, and reliable, then you may act on it.  You must then consider whether you are satisfied of the elements of the offences beyond reasonable doubt.”

41. [41]
    In relation to the trial judge’s reference to the complainant’s text message of 9 April 2018, the jury could take into account that more than a year and a half earlier the complainant had complained of some of the sexual misconduct of which she subsequently gave evidence in June 2018.  The jury also could take into account the complainant’s apparently frank admission that she remembered that, when her mother was trying to leave the appellant, the appellant said he and his grandmother would seek custody of the three youngest children.  And if the jury found that the complainant was aware of an intention by the appellant to seek such custody, whilst that would be a circumstance to be assessed in the context of the evidence as a whole, it would not necessarily be inconsistent with acceptance of the complainant’s evidence of the charged offences.
42. [42]
    I would accept that the delay in charging the applicant to which the trial judge referred is relevant for the decision whether the verdicts were reasonably open to the jury, particularly when it is considered in the context of the other circumstances to which the trial judge referred.  As to the complainant’s delay in disclosing the alleged offending, however, the jury could accept the complainant’s explanation that she felt uncomfortable in making disclosures, and there was also a body of evidence in the prosecution case which, the jury could find, justified findings beyond reasonable doubt that there was a degree of disfunction in the household and the appellant had engaged in significant domestic violence.  (The trial judge gave conventional directions confining the use of the evidence of disfunction and domestic violence by the jury to the limited purposes of showing why the complainant did not complain, why she acquiesced in some conduct, and why A did not make disclosures at the time he said he observed the incidents he described.)
43. [43]
    Perhaps the most significant discrepancy or inconsistency in the evidence, arose from the complainant’s statement in the police interview when she answered “Yep” to the question “So it was always on the outside of the vagina?”.  That is inconsistent with the passages of her subsequent statement to police upon which the charges of rape in counts 4 and 5 were founded.  In cross-examination, the complainant agreed she had added those statements in her written statement.  The complainant also did not refer to penetration of her vagina in what she told her mother.  Nor did she mention it to any other witness who gave evidence.  When assessing the significance of that matter, the jury could accept and take into account the complainant’s explanation for it that she was uncomfortable about discussing the matter at the time of the police interview.  The acceptability of that explanation is a question which the body of jurors was particularly well qualified to decide.
44. [44]
    As to the inconsistency to which the trial judge referred between the content of the complainant’s note and her evidence, on the one hand, and the complainant’s mother’s evidence that the complainant said the appellant would touch her and she would have to touch the appellant, the jury could resolve that inconsistency in a number of different ways, including by acceptance of the complainant’s evidence.
45. [45]
    The absence of medical evidence supporting any of the charges did not preclude the jury from accepting that the evidence given by the complainant which supported each of the counts was honest and reliable.
46. [46]
    For the most part, the complainant was entirely or at least substantially consistent in describing the appellant’s offending in her police interview, her statement to police, and in her evidence in chief and cross-examination.  The jury could also derive some support for acceptance of the complainant’s evidence from some of the evidence given by the complainant’s mother and A who, the jury could conclude, gave honest evidence to the best of their recollections.  As the trial judge directed the jury, A’s evidence of the alleged incidents he described could be used by the jury as making it more likely that the appellant did what was alleged in a particular charge under consideration, if the jury was satisfied beyond reasonable doubt both that the evidence was true and it demonstrated the appellant had and was willing to put into effect a sexual interest in the complainant.  The trial judge gave a similar direction about the evidence of the complainant’s mother that she saw the appellant with his hand down the complainant’s shirt, in that case adding the alternative possibility that the jury could use the evidence as direct support for the complainant’s evidence in respect of count 6 if the jury was persuaded that the complainant’s mother’s evidence described the conduct alleged in that count.
47. [47]
    The trial judge directed the jury that if they were satisfied that some of the sexual acts other than the specific acts charged did occur, it did not inevitably follow (from a finding by the jury that the appellant had and was willing to put in effect a sexual interest in the complainant) that the appellant was guilty of these specific charges; the jury must always decide whether, having regard to the whole of the evidence, the charged act under consideration was established to the jury’s satisfaction beyond reasonable doubt.  Even so, upon the evidence it was reasonably open to the jury to regard this body of evidence as supplying significant support for the prosecution case.
48. [48]
    The jury could also take into account as support for the Crown case the evidence of the first pretext telephone call upon which the prosecution relied.^[4]  The trial judge directed that if the jury was satisfied beyond reasonable doubt that the appellant’s statements (he was not sure what he should be saying, he did not know what to say, and he would talk about that personally) arose from a consciousness of guilt that he had a sexual interest in the complainant and he had given effect to that interest, the jury could use that evidence as making it seem more likely that the appellant did what was against him.  The trial judge also directed that the jury could adopt that course only if it was satisfied beyond reasonable doubt that what the appellant said was a truthful admission that he had sexually offended against the complainant.  It was again open to the jury to regard this evidence as supplying significant support for the Crown case.
49. [49]
    In deciding whether it was open upon the evidence for the jury to be satisfied beyond reasonable doubt that the appellant was guilty of an offence of which he was convicted, the Court must pay full regard to the considerations that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and the jury had the benefit of having seen and heard the witnesses give evidence at the trial.^[5]  Taking that into account, I conclude that, notwithstanding the various discrepancies and inconsistencies in the evidence in the Crown case, it was open to the jury to find that the complainant’s evidence of the elements of each offence charged against the appellant was honest and reliable.  As I have mentioned, the complainant’s evidence, which was in some respects supported by other evidence to which I have referred, if accepted, was plainly sufficient to establish the elements of each offence.
50. [50]
    The verdicts of guilty were open to the jury upon the whole of the evidence.

Ground 2: Discharge of a jury member.

51. [51]
    At the commencement of the fourth day of the trial, a Monday, defence counsel informed the trial judge that the appellant instructed that on the preceding Saturday night a friend of the appellant’s had arrived at his house.  The friend informed the appellant, “My mate that’s on your jury said, ‘it’s not looking good for old mate’”, “old mate” being a reference to the appellant.  The jury was brought into the courtroom and questioned by the trial judge.  Juror 6 said that he used to work with the person of the name that had been identified by the appellant.  Juror 6 said he was with that person on Sunday but that they had not discussed the case.  Juror 6 remained in court whilst the other jurors left the courtroom.  Juror 6 then told the trial judge that he had not spoken to the person during the course of the trial apart from the preceding day and he had not spoken to him about the case at all.  Juror 6 said he told the person that he was on jury duty but he did not mention which case.
52. [52]
    Defence counsel initially applied for the discharge of the whole jury.  The trial judge indicated that an attempt should be made to obtain further information, including further attempts to contact the person to whom juror 6 had spoken.  Defence counsel then applied for the discharge of juror 6.  Before ruling on that application, the trial judge adjourned the court to enable further attempts to be made to contact the person who had spoken to juror 6.  About two hours later, defence counsel informed the trial judge that the defence had managed to speak with the person during the break and asked him to ensure that he kept his phone on so that the prosecution or police could call him.  They were unable to get through to him.  Defence counsel submitted there was insufficient information to support an application to discharge the jury.  Defence counsel informed the trial judge that the opinion the person had expressed to the appellant was the person’s own opinion, not any direction by or information divulged by juror 6.  Defence counsel also submitted that a lot of what the person said did not make sense.  Apparently by way of example, defence counsel conveyed the appellant’s instructions that the person said juror 6 had said he was minded to convict the appellant even based on his appearance as early as Tuesday, but as defence counsel pointed out the trial had not commenced by the preceding Tuesday.
53. [53]
    The trial judge questioned juror 6, who denied having had any discussion about the details of the case with the person.  Defence counsel and the prosecutor submitted that juror 6 seemed sincere in what he said.  The trial judge discharged juror 6 pursuant to s 56(1) of the Jury Act on the ground that, whilst the judge considered the juror to be capable of being and remaining impartial, there was sufficient risk of an appearance to the contrary to require the order for discharge.  Defence counsel submitted that the trial could proceed with 11 jurors.  The trial judge made an order to that effect under s 57(1) of the Jury Act.
54. [54]
    The appellant’s argument that a miscarriage of justice arose in connection with the discharge of juror 6 is not supported by any evidence or information before the Court.  There was no miscarriage of justice.

Ground 3: The appellant was not afforded a fair lawyer or barrister who explained how the trial was conducted

55. [55]
    There is no evidence and there is nothing in the record to support the contention in ground 3 or to indicate that there was any miscarriage of justice on this account.

Other arguments

56. [56]
    The appellant complains that in the week before the trial two charges were added.  There was no objection to the addition of those charges and there is no evidence or information in the record that the addition of these charges prejudiced the appellant in the running of the trial.
57. [57]
    The appellant stated in his submissions that a woman gasped as the charges were read out at the start of the trial “she presumed guilt throughout the entirety of the case”.  There is no evidence or information in the record to support this statement.  The appellant was arraigned before the jury was empanelled.  After the jury was empanelled the trial judge explained the importance of juror impartiality and asked the members of the jury, “if, for any reason, one of you felt that you couldn’t be impartial, or be seen as impartial, then I would ask you to indicate that by raising your hand”.  The trial judge recorded that there was no response from the jury.  Before the prosecutor opened the case, the trial judge directed the jury that they were required to consider the facts of the case based on the evidence presented in the course of the trial and it was important that the jury kept an open mind as the case progressed.  In summing up the jury, the trial judge gave conventional directions about the onus and standard of proof and directed the jury in emphatic terms that they were to determine the facts of the case based on the evidence presented in the course of the trial.  The trial judge also directed the jury they should dismiss all feelings of sympathy or prejudice, whether it be sympathy for, or prejudice against the defendant or anyone else, that this was a particularly important consideration in cases of this type where feelings of prejudice could naturally arise, that no such emotion had any part to play in the jury’s decision in the case, and that the jury must approach their duty dispassionately, deciding the facts upon the whole of the evidence.  Nothing appears in the record to displace the presumption that the jury followed those directions.
58. [58]
    Otherwise the submissions by the appellant comprised statements to the effect that he was not guilty of the offences of which he had been convicted.  Those submissions do not bear upon the question raised by ground 1, which turns upon an independent assessment of the whole of the record.  Nor do those submissions bear upon any question raised by the other grounds of appeal.
59. [59]
    The appeal against conviction should be dismissed.

Application for leave to appeal against sentence

60. [60]
    The ground of the application for leave to appeal against sentence is that the sentence is manifestly excessive.  The appellant does not make any challenge to the trial judge’s findings.  The appellant was aged 22 to 30 in the period in which he offended against the complainant.  He had a criminal history involving convictions of property offences, assault and drug offences.  The appellant had been given the benefit of probation.  Some of the offences for which he fell to be sentenced occurred during a 12 month period of probation imposed upon him for drug offences on 11 February 2014.  His criminal history did not include any offence of a nature that was similar to the subject offences.  After the appellant had committed the present offences he was dealt with for contraventions of a domestic violence order.  Whilst on bail for the present offences he was dealt with for possession of cannabis seeds.
61. [61]
    The trial judge found that the period of offending was about eight years, from a specified date in June 2007 to a specified date in September 2015 and committed against his step-daughter “aged between 7 and 15 at the time.”  During the specified period, the complainant was in fact aged six - 14 according to the uncontroversial evidence at the trial of her date of birth.  There is no reason to doubt that the jury accepted that the complainant was in fact aged six – 14 in that period, particularly given that the jury found the appellant guilty of count 2, which was alleged to have been committed during a period when the complainant was age six.  If the trial judge was in error in stating the age of the complainant during the period of offending as being between seven and 15, rather than between six and 14, that was not an error that worked to the disadvantage of the appellant.
62. [62]
    The trial judge described the offending conduct in terms which are consistent with the jury’s verdicts and the complainant’s evidence, and observed that the offending involved many instances of sexual offending over a long period and was brazen.  The sentencing judge referred to the devastating consequences for the complainant set out in her mother’s victim impact statement.  The crimes had a big impact on everyday life, they impacted upon the complainant and her mother, the mother had experienced nightmares and constant headaches, and the complainant had experienced nightmares, difficulty with sleeping, and an inability to commit herself to school tasks.  She was making significant progress by the time of sentence but it would be a long, hard road for her to fully overcome the consequences of the appellant’s offending.
63. [63]
    The trial judge observed that the complainant and other witnesses were cross-examined by defence counsel in a sensitive manner but there were allegations that she had lied because she was motivated by a custody dispute between her and her mother in relation to the appellant’s three children.  The trial judge referred to the maximum penalties of imprisonment for life for counts 1, 4 and 5 and 20 years imprisonment for counts 2, 3 and 6.  The trial judge referred also to references tendered on the appellant’s behalf from friends and family, to the support for him of his mother and step-father, to the absence of previous convictions for similar offences, and to the fact that he commenced his offending when he was relatively young, aged 22.
64. [64]
    After discussing comparable cases cited by counsel,^[6] and referring to applicable sentencing provisions in the Penalties and Sentences Act 1992, the trial judge noted that a sentence of 10 years imprisonment or more would result in the automatic declaration that the appellant had been convicted of a serious violent offence, producing the consequence that he would be liable to serve 80 per cent of the sentence before eligibility for release on parole.
65. [65]
    The appellant’s outline of argument describes what are submitted to be cases in which less severe sentences were imposed for comparable offending.  The outline does not supply citations of the cases.  Insufficient information is given in the outline to ascertain whether the cases are comparable or capable of shedding light upon the appropriateness of the appellant’s sentence.
66. [66]
    As was submitted for the respondent, the offending involved a gross breach of trust by a paternal figure (the evidence was that the complainant referred to the appellant as “Dad”), that offending commenced when the complainant was very young, and it involved penetrative acts.  The sentences in R v BCA (10 years imprisonment upheld on appeal), R v BAY (12 years imprisonment reduced on appeal to 10 years imprisonment), and R v RAZ; Ex parte Attorney-General of Queensland (nine years imprisonment increased to 11 years imprisonment on appeal) are consistent with my conclusion that the sentence imposed upon the appellant was within the trial judge’s sentencing discretion.  A less severe sentence might also have been within the sentencing discretion, but I am not persuaded that the sentence is manifestly excessive.  The appellant has not established that the trial judge made any error which would justify appellate interference in the sentence.

Proposed order

67. [67]
    I would dismiss the appeal and refuse the application for leave to appeal against sentence.
68. [68]
    MORRISON JA:  I have had the advantage of reading the reasons for judgment of Fraser JA.  I agree with those reasons and with the orders proposed by his Honour.
69. [69]
    MULLINS JA:  I agree with Fraser JA.