R v CCW[2022] QCA 183

SUPREME COURT OF QUEENSLAND

Introduction

1. [1]
   THE COURT:  The appellant was charged with 10 counts of sexual offending against the complainant who was, at the time of the offending, a three year old child living with her mother in the appellant’s house.
2. [2]
   Counts 1 to 8 involved various forms of indecent treatment of a child under the age of 16 and less than 12 years, under the appellant’s care at the time of the offence, contrary to various provisions in s 210 of the Criminal Code (Qld) (the Code).  Counts 1 and 2 occurred together.  Count 1 involved the appellant touching the complainant’s vagina and count 2 concerned the appellant exposing the complainant to his erect penis.  Count 3 alleged that the appellant licked the complainant’s vagina.  Count 4 alleged that the appellant exposed the complainant to a pornographic video.
3. [3]
   Counts 5 to 8 involved the appellant making indecent videos and photographs of the complainant.  Counts 9 and 10 alleged that the appellant possessed and made child exploitation material, namely the material the subject of counts 5 to 8, contrary to s 228D(1)(b) and s 228B(1)(b) of the Code.
4. [4]
   At the commencement of the trial, the appellant pleaded not guilty to all counts.  On the second day of the trial, after the completion of the complainant’s evidence and almost immediately following the jury’s viewing of the videos and photographs of the complainant made by the appellant, the appellant pleaded guilty to counts 5 to 10.
5. [5]
   After the conclusion of the evidence, one of the jurors had a serious injury at home and was unable to continue acting as a juror.  The judge did not consider it appropriate to discharge the jury as a whole, deciding that the trial should proceed with the jury of 11.
6. [6]
   After the jury retired to consider their verdicts, they sent a note to the judge asking to re‑watch the complainant’s police interview.  Counsel for the appellant initially submitted that the jury should also be shown the cross‑examination of the complainant so that they were reminded of both sides of the story.  After further exchange, the judge proposed that her Honour would ask the jury if they also wanted to view the cross‑examination of the complainant and, if they said no, the judge would remind the jury of the salient features of the defence case.  The appellant’s counsel did not oppose that course.
7. [7]
   When asked whether they wanted to re‑watch the cross‑examination, the jury said that they did not.  After the jury re‑watched the complainant’s police interview, the judge gave the jury a direction to be careful not to place undue weight on the police interview simply because they had seen it twice.  The judge reminded the jury of several features of the evidence that had been emphasised in the defence case.
8. [8]
   The jury convicted the appellant on counts 1 to 4.
9. [9]
   The appellant was sentenced to three years’ imprisonment, with eligibility for parole on 30 December 2022.
10. [10]
    The appellant now appeals against his conviction and seeks leave to appeal against his sentence.
11. [11]
    The appellant advances two grounds of appeal against conviction.  He contends that the verdicts were unreasonable and unsupported by the evidence, in effect because the complainant’s evidence was unreliable.  Secondly, the appellant alleges that the trial judge erred in refusing to discharge the jury in its entirety and in permitting the jury to re‑watch the complainant’s evidence‑in‑chief in isolation from her cross‑examination.
12. [12]
    The appellant’s sole proposed ground of appeal against sentence contends that the total effective sentence he received, namely three years, was manifestly excessive.
13. [13]
    For the reasons that follow, the appeal must be dismissed and the application for leave to appeal against sentence must be refused.
14. [14]
    Because the appellant contends that it was not open to the jury to be satisfied beyond reasonable doubt as to the reliability of the complainant’s evidence, we will outline that evidence in detail.

The complainant’s evidence

15. [15]
    The complainant was interviewed by police on 6 August 2018, when she was four years old.  The recording of that interview was tendered under s 93A of the Evidence Act 1977 (Qld).  The complainant then gave pre‑recorded evidence on oath, which was tendered at the trial.

Police interview

16. [16]
    The police interview of the complainant was lengthy.  The following includes the most material parts of the interview and sufficiently demonstrates the overall flavour of the complainant’s responses during the interview.
17. [17]
    The interviewing officer showed the complainant her police badge and explained to the complainant that the interview was being recorded.  The interviewing officer told the complainant the importance of telling her what really happened.
18. [18]
    The interviewing officer asked the complainant what she had come to talk about.  The complainant said that, ‘[The appellant] has to go in jail’ because he ‘was touch my pee pee and licking me’.
19. [19]
    The interviewing officer asked the complainant to tell her everything about the appellant touching the complainant’s pee pee and asked the complainant to start at the beginning.  The complainant said that he licked her, repeating this statement several times.
20. [20]
    The interviewing officer asked the complainant to tell her more about the appellant touching her on the pee pee.  The complainant said, ‘he did’.  When asked how, the complainant said, ‘cause he lied me down on his bed’.  The interviewing officer asked what happened then and the complainant said that then he stopped doing it.  The interviewing officer asked the complainant what part of the body she meant by ‘pee pee’.  When asked what she normally does with her pee pee, the complainant said, ‘he always do it’.
21. [21]
    The interviewing officer asked the complainant where she was when the appellant did that.  The complainant said that they were at the appellant’s house.  When asked whereabouts in the appellant’s house, the complainant said in the appellant’s room.  The interviewing officer asked which room.  The complainant responded, ‘he was pretty big’.
22. [22]
    When asked what part was big, the complainant said, ‘his pee pee’.  The interviewing officer asked what happened then and the complainant said, ‘and he grows’.  When prompted to clarify, the complainant said, ‘it was growing’.  The interviewing officer asked why it was growing.  The complainant said, ‘cause when you, when you finally touch someone’s pee pee’.
23. [23]
    The interviewing officer asked who touched the appellant’s pee pee.  The complainant said, ‘no, he touched mine’.  The interviewing officer asked why the appellant’s pee pee got bigger.  The complainant said, ‘cause he growed a big one’.  The interviewing officer asked how the complainant knew that the appellant grew a big one.  The complainant said, ‘cause’ and, when prompted, ‘cause he wanted to’.
24. [24]
    The interviewing officer asked if the appellant used a part of his body when he touched the complainant’s pee pee.  The complainant said yes, he licked her.  When asked what he used to lick her, the complainant said his tongue.  When asked what happened next, the complainant said that he stopped doing it.
25. [25]
    The interviewing officer asked the complainant to listen and asked whether the appellant touching the complainant’s pee pee was different to when the appellant licked her pee pee.  The complainant replied ‘yeah’.  The interviewing officer asked the complainant to clarify, asking ‘is touching the same as licking’.  The complainant replied ‘yeah’.
26. [26]
    The interviewing officer asked how the appellant managed to lick the complainant’s pee pee with his tongue.  The complainant said, ‘no, yes he did’.  When asked what she was wearing, the complainant said that she was wearing her underwear and her ‘jamas’.  The complainant said, ‘and then he… and I took my pants off’.  The complainant said that she took her pants off and that mummy had no more nappies.  The interviewing officer asked where the complainant was when she took them off.  The complainant said, ‘he had enough doing my pee pee…  And then he has to go to jail’.  The complainant repeated ‘jail, jail, jail’ several times.
27. [27]
    The interviewing officer asked the complainant to tell her what happened with the computer.  The complainant said that she saw a girl touching a pee pee.
28. [28]
    The interviewing officer asked the complainant if the ‘computer part’ was the same time as the ‘licking part’ or whether it was a different time.  The complainant said that it was a different one.  When asked where she saw the computer, the complainant said, ‘in his room’.  The interviewing officer asked what the appellant normally does in his room.  The complainant said that he ‘sees it and he has games on it’.
29. [29]
    Then, this exchange occurred:

“THE INTERVIEWING OFFICER: Mm, okay.  What was he doing with his fingers when he touched you?

[COMPLAINANT]:   He did nothing.

THE INTERVIEWING OFFICER: What’s nothing?

[COMPLAINANT]:  I mean nothing, touched my pee pee.

THE INTERVIEWING OFFICER:  Touched your pee pee?

[COMPLAINANT]:  No he didn’t.

THE INTERVIEWING OFFICER: Oh, well, I’m confused?

[COMPLAINANT]: He, he didn’t tou-, um, he did no-, and he did touch my pee pee at home.

THE INTERVIEWING OFFICER: He did touch your pee pee--

[COMPLAINANT]: mm.

THE INTERVIEWING OFFICER: Yeah, yeah.”

30. [30]
    The interviewing officer asked what the appellant’s fingers were touching.  The complainant said, ‘my pee pee’.  The interviewing officer asked what the complainant normally used her pee pee for.  The complainant talked about her colouring.
31. [31]
    The interviewing officer asked where the complainant’s mum was when the appellant did these things.  The complainant said that her mum was in bed and that she didn’t get out.  When asked why her mum didn’t get out of bed, the complainant’s response was mostly indistinct.  The interviewing officer and the complainant then spoke about colouring and a book.

Pre-recorded evidence

32. [32]
    The complainant’s evidence was pre‑recorded on 23 April 2021, when she was seven years old.
33. [33]
    The complainant confirmed that, the day prior to giving her pre-recorded evidence, she had watched a recording of her police interview and that everything she had said in that police interview was true.^[1]  Until the day prior to giving her pre-recorded evidence, the complainant did not remember going to the police station.  Watching her police interview the day before giving her pre-recorded evidence helped her memory.  The complainant said, in the course of cross‑examination, that she did not really remember things that happened three years ago.^[2]
34. [34]
    The complainant confirmed that she had used the word ‘pee pee’ in the police interview, saying that the proper name for her pee pee is privates or vagina, and that the proper name for the appellant’s pee pee is penis.^[3]  The complainant said that she used the word ‘pee pee’ for both female and male privates when she was younger because she only recently learned their proper names and because she did not know the difference between the ‘parts down there’ when she was younger.^[4]
35. [35]
    The complainant confirmed that she had told police that there was an occasion where she saw the appellant’s pee pee and the appellant touched the complainant’s pee pee and licked the complainant’s pee pee.  The complainant said that the appellant touched her pee pee with ‘his privates’.^[5]  The complainant confirmed that she had told police that the appellant ‘squished’ his pee pee, but said that she has forgotten what she meant by squished.  The complainant confirmed that she had told police about an occasion when the appellant showed her a video on his computer.  She said that that was on a different occasion to when he touched and licked her pee pee.^[6]
36. [36]
    The complainant was shown a series of photographs, including photographs of her underwear and the appellant’s house.  She confirmed the photographs’ contents and they were tendered as exhibits.^[7]
37. [37]
    The complainant’s evidence in cross‑examination included the following.
38. [38]
    The complainant confirmed that she was playing with a toy horse during the police interview.^[8]  The complainant said that the appellant broke his toe in the park.  The complainant denied that it was actually her mother who had a broken toe, saying her mum broke her leg two years ago.^[9]
39. [39]
    The complainant could not remember mentioning someone called X^[10] in her police interview and said that she did not know anyone called X.  The complainant said that she was playing when she said in the police interview that the appellant flew into the air and X was there, but said that she was not playing around when talking to the police, she was only playing around when talking to police at times.^[11]  Later in her pre-recorded evidence, the complainant said that she knew a person called X, who had two little kids who were the complainant’s friends.^[12]
40. [40]
    The complainant remembered changing what she said the appellant touched her with, and what happened, at times.  The complainant said that the appellant showed her a video on YouTube of either a boy or a girl touching a pee pee; the complainant forgot that, in her police interview, she had said at one point that it was the boy who did the touching in the video and at another point that it was the girl.  The complainant said that she had not told police that the video was on YouTube because she had not known about YouTube when she was younger.^[13]  The complainant used the word ‘video’ instead of ‘YouTube’ later in her pre-recorded evidence and said that that was because she liked saying different words.^[14]
41. [41]
    The complainant agreed that she was playing around in the police interview.  She said that she was playing around because she was bored.  She said that she giggled because she ‘was always doing that’.^[15]
42. [42]
    The complainant said that she used to colour with the appellant sometimes, and that the appellant was good at painting.^[16]
43. [43]
    When asked whether she remembered saying that W^[17] was the person who touched her, the complainant said that she sometimes says wrong people.  W is someone who lives with her.  The complainant meant to say the appellant’s name, but when asked whose finger she was talking about, said, ‘W – [the appellant]’.  She accidentally said W.^[18]
44. [44]
    The complainant remembered that she had said ‘cause’ in response to some questions by the police [where ‘cause’ did not make sense as a response].  The complainant said ‘cause’ because she did not know what to say and was trying to remember what to say.^[19]
45. [45]
    The complainant remembered saying in her police interview that the complainant ‘didn’t do it’, but said that that was an accident.^[20]
46. [46]
    The complainant agreed that she was having trouble remembering because it was a long time ago.  The complainant agreed that, when she spoke to police, what happened was not a long time ago.^[21]
47. [47]
    The complainant said that sometimes the appellant dressed the complainant in her pyjamas and underpants.  Sometimes the appellant would dry off the complainant after her bath with a towel.^[22]  Sometimes the appellant would touch around the complainant’s vagina with the towel while drying her off.  Sometimes the appellant would change the complainant’s nappies.  The complainant thought that sometimes he would have to touch her vagina while he changed her nappy.^[23]
48. [48]
    The complainant used to play computer games on the appellant’s computer in his room and read books in his room.  The appellant used to play ‘catch-me’ around the house with the complainant and the appellant used to lift the complainant in the air like an aeroplane; sometimes this occurred after a bath, when the complainant was not wearing clothes.^[24]
49. [49]
    The complainant said that no one had told her to say that the appellant was the person who did the offending, or that he should go to jail.^[25]  The complainant thought in her own brain that the appellant was naughty and had to go to jail.^[26]
50. [50]
    The complainant said that she did not remember telling her mother that someone other than the appellant did the offending and did not remember telling her that ‘it wasn’t [the appellant]’.^[27]
51. [51]
    The complainant agreed that, when she told the police that the appellant’s penis ‘growed up’, she meant that the appellant was a grown-up man with a grown-up penis.^[28]
52. [52]
    The complainant denied counsel’s suggestion that the appellant never showed her anything on the computer involving a boy or a girl touching a pee pee.  The following exchange occurred:^[29]  

“[Counsel:] [The appellant] never showed you these things on his computer?

[Complainant:] But he did’.”

53. [53]
    Sometimes the complainant walked into the appellant’s room and saw him watching videos ‘of that’.
54. [54]
    The complainant denied counsel’s suggestion that the appellant never licked her vagina.^[30]
55. [55]
    The complainant denied that it was somebody other than the appellant who did ‘these things’ to her.^[31]
56. [56]
    In re‑examination, the complainant said that she remembered that the video the appellant showed her involved a boy and a girl on a bed.  The complainant confirmed that the appellant touched her vagina with his privates.^[32]

The appellant’s change of plea

57. [57]
    At the trial, after opening the Crown case, the prosecutor played the video recordings of the complainant’s police interview and her pre‑recorded evidence.^[33]  After this, evidence was led from police officers of the search of the appellant’s house, the seizing of a mobile phone and hard drive which the appellant admitted to be his,^[34]  and digital analysis of those devices by which a USB drive of thumbnails of images from the mobile phone, and videos from the external hard drive, were produced.  The thumbnails and videos were tendered, and the jury watched them.^[35]
58. [58]
    After the jury watched the videos, the judge adjourned for a short break.  During the break, counsel for the appellant spoke with the appellant, following which he pleaded guilty to counts 5 to 10.^[36]
59. [59]
    The trial then continued in relation to counts 1 to 4 only.

The complainant’s mother’s evidence

60. [60]
    The complainant’s mother had been friends with the appellant for 10 years by the time she and the complainant moved into the appellant’s house.  They lived there for about six months before moving out and returning a couple of months later.^[37]
61. [61]
    One night in October 2017, while the complainant and her mother were watching television, the complainant told her mother that the appellant had touched her ‘pee pee’.  The complainant pointed towards her vagina with a wooden spoon.  The complainant asked her mother if the appellant was ‘going to get a smack for it’.^[38]  Her mother said, ‘okay’, and asked, ‘are you sure?’  The complainant said, ‘yeah’.  The complainant’s mother said, ‘leave it with me’, and then put the complainant to bed.^[39]  The next morning, the complainant’s mother asked the complainant to show her what had happened.  The complainant took her into the appellant’s room, lay on the bed, spread her legs and said, ‘and he went big, big, bigger’, and said, ‘and he also did the lick, lick on me too’.^[40]  The complainant’s mother then drove with the complainant to stay at a friend’s house.  During the drive, she asked the complainant if it hurt and the complainant replied, ‘no… It just tickled’.^[41]
62. [62]
    In cross‑examination, the complainant’s mother said that she had been living with a friend of hers called W in about April 2017, before she moved in with the appellant.^[42]
63. [63]
    A few weeks after the complainant first told her mother about the appellant having touched her, the complainant told her mother that she was touched on the pee pee by a friend of the complainant’s father’s son, saying, ‘Q^[43] done it.  It wasn’t [the appellant]’.^[44]
64. [64]
    When counsel for the appellant put to the complainant’s mother that she had said to the complainant that, ‘[The appellant] was naughty and he needs to go to gaol’, she responded, ‘yes, I think so’.^[45]
65. [65]
    In re‑examination, the complainant’s mother said that she thinks she said it but can’t quite remember.^[46]
66. [66]
    It is not necessary to detail the evidence of the other witnesses called by the Crown.

A juror is incapacitated and discharged; the defence requests for the jury to be discharged

67. [67]
    On the morning of the third day of the trial, the prosecution case having closed and the appellant having elected not to give evidence, the Court was advised that one of the jurors had been injured and had been taken to a hospital emergency department.
68. [68]
    After taking instructions from her client, the appellant’s counsel stated that the appellant would prefer to proceed with a jury of 12, potentially starting the trial again the next day.  Counsel referred to the fact that the appellant’s pleas of guilty to counts 5 to 10 had occurred in front of the jury.  Counsel indicated that the appellant’s preferred position was a new trial, but explained that she was not in a position to make substantive submissions on the point.^[47]
69. [69]
    Later that day, the Court was advised that the juror was in surgery and had been badly injured.  The judge decided that the juror was incapable of continuing to act as a juror and discharged the juror pursuant to s 56(1) of the Jury Act 1995 (Qld) (Jury Act).  The judge then invited submissions from the parties as to whether the Court should exercise its power under s 57 of the Jury Act to continue with a jury of 11.
70. [70]
    The appellant’s counsel requested that the judge discharge the entire jury, referring to s 60 of the Jury Act, subject to it being possible to commence a new trial the following day.^[48]  The judge pointed out that in a fresh trial of counts 1 to 4, the prosecution would still rely on the videos and would, absent admissions by the appellant, have to call the technical evidence to prove that it was the appellant’s video and images.  The appellant’s counsel accepted that this was so.^[49]
71. [71]
    Although the position is not entirely clear, ultimately the appellant’s counsel appeared to rely on the fact that the appellant’s pleas of guilty occurred in the presence of the jury and that they would not ordinarily occur in the presence of a jury.^[50]
72. [72]
    The Crown submitted that there was no proper reason to discharge the jury.
73. [73]
    The judge decided that the trial should continue with a jury of 11.
74. [74]
    The judge reasoned that the appellant chose to plead guilty part-way through the trial; that it would be distressing for the complainant’s mother to give evidence again; that discharging the jury would mean subjecting another 12 jurors to the distressing evidence; that discharging the jury would allow the appellant to again view the child exploitation videos he made of the complainant, thus further abusing her; that there is a public interest in not wasting the time and efforts of the original jury; and that there is a public interest in the matter being finalised.^[51]

Trial judge’s summing up

75. [75]
    Bearing in mind the scope of the grounds of appeal, it is only necessary to describe a few aspects of the judge’s summing up.
76. [76]
    The judge referred to the Crown’s submission that the videos the appellant made of the complainant’s vagina demonstrated the appellant’s sexual interest in the complainant and that the jury could use a finding of such sexual interest to conclude that it was more likely that the appellant committed counts 1 to 4.  In that regard the judge said:^[52]

“It is for you to decide whether those four videos do prove that the defendant had a sexual interest in [the complainant] which he was prepared to act on and whether that evidence assists you in the way argued, that is, by eliminating any doubts you may have about [the complainant’s] evidence or making it more likely that he committed counts 1 to 4.”

77. [77]
    The judge said that the jury did not have to concern themselves with the other videos and images that they were shown because they were only relevant to the charges to which the appellant pleaded guilty.^[53]  The judge said that:^[54]

“Importantly, with respect to all of that evidence, that is, all of the videos and the thumbnail images and the defendant’s pleas of guilty to some of the charges, you must not jump to an automatic conclusion that the defendant is guilty of counts 1 to 4 because of the nature of those videos and images or because he has pleaded guilty to some of the charges.  Even if you are satisfied that the four videos relied upon demonstrate that the defendant had a sexual attraction to [the complainant] which he was willing to act on, you must consider the evidence that relates to each of the four charged offences which is contained in her interview with police and her pre-recorded evidence to determine whether he is guilty of the particular offence under consideration.

It would be wrong for you to reason that just because he filmed her genitalia he must therefore be guilty of touching her vagina, or licking her vagina, or exposing her to his erection or an indecent video.  Now, because there [are] four separate charges that you must consider, you must consider each of them separately, evaluating the evidence relating to that particular charge to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved its essential elements.  You will return separate verdicts for each charge.  The evidence in relation to each of the separate offences is different and so your verdicts need not be the same.  The elements of the offences are different and so your verdicts need not be the same and the issues that you need consider are different so your verdicts need not be the same.”

78. [78]
    The judge had, earlier, foreshadowed the directions in [76] and [77] with counsel, both of whom were content with what was proposed.^[55]
79. [79]
    The judge said that the complainant’s preliminary complaint evidence to her parents could only be used in relation to the complainant’s credibility, by reference to any consistency between the accounts the complainant gave to her parents and the evidence she gave in court.  The judge told the jury that they could not regard a thing said by the complainant in those out‑of‑court statements as proof of what had actually happened.
80. [80]
    The judge further directed the jury that any consistencies or inconsistencies were a matter for the jury to assess and to determine their significance.^[56]
81. [81]
    The judge reminded the jury that their verdicts on counts 1 to 4 required them to focus particularly on the reliability of the complainant’s evidence, each charge being based on what she had told the police in her police interview.  The judge instructed the jury that they should carefully consider each of the following features when considering the complainant’s evidence and determining what weight to place on that evidence:^[57]

“She was only four and a-half when she was interviewed by police.  She was easily distracted by objects, particularly the toys and books in the room.  At times her answers were confusing, even to the police officer who had the benefit of sitting with her and speaking to her for some 40 minutes.  She was recalling events as a four and a-half year old that occurred as long ago as one year and three months prior to the interview.  That is a very long period of time for a young child to remember.  There are some inconsistencies that you need to pay close regard to.  When she was seven and her evidence was pre-recorded, she was asked by the Prosecutor, ‘What did [the appellant] use to touch your pee pee’ and she answered ‘His privates’.

That is not an allegation that she made to police or one on which the prosecution rely.  She told her mother a few weeks after her first disclosure that it was Q’s friend who did it and not [the appellant], that is, not the defendant.  She did not remember, when she was cross-examined at the age of seven, that she had said that it was Q’s friend who did it and not [the appellant].  Ms Hillard has pointed to other inconsistencies in her evidence as well that you should pay regard to.

Finally, her mother’s comment that [the appellant] was ‘naughty and needs to go to jail’, which [the complainant’s mother] accepted that she likely said, may have had some influence on [the complainant], given her repeated references to [the appellant] needing to go to jail in that interview with police.  In light of her very young age at the time, that evidence might suggest that she is suggestable.”

82. [82]
    The judge summarised the Crown case and the defence case.^[58]
83. [83]
    The jury retired to consider their verdicts.  Counsel for the appellant indicated that the appellant did not seek a redirection in any respect.^[59]

The jury’s request to re‑watch the police interview

84. [84]
    After they had retired to consider their verdicts, the jury sent a note to the judge asking to re‑watch the complainant’s police interview.  The judge heard submissions from counsel concerning the jury’s request.  Counsel for the appellant submitted that the judge should play the cross‑examination as well, otherwise the jury would only see one side of the case.  Counsel indicated that she thought there was authority for that position.  Initially, counsel could not recall the name of the authority, but later identified it as R v Ali.^[60]  The judge indicated that she thought it appropriate to remind the jury of salient parts of the cross‑examination, which the judge invited the appellant’s counsel to identify.  In response, the appellant’s counsel identified various topics.
85. [85]
    After the jury returned, the judge asked them if they wished to watch the cross‑examination of the complainant as well.  The jury indicated that they did not.  After the jury re‑watched the complainant’s police interview, the judge directed the jury as follows: ^[61]

“So you have now seen the police interview with [the complainant] twice.  Be careful not to place undue weight on this piece of evidence simply because you have seen it twice.  You should consider that evidence in the context of the other countervailing evidence in the case which includes that, in Court, [the complainant] said that [the appellant] touched her pee pee with his privates, that she was asked did she know anyone named X and she said no but later said that she knew someone named X.  She had two kids who were her friends.  She agreed that she had started to say ‘W’ but said that sometimes she said the wrong people.

Sometimes when [the appellant] changed her nappy, she agreed that he had to touch her privates.  She agreed with the suggestion that when she was talking about his penis and she said ‘He growed a big one’, that she meant that he was a grown up man with a grown up penis.  She said sometimes the defendant watched videos in his room.  She would go in to ask for food and she agreed that she walked in one day and just saw it on the computer.  And you will of course recall her mother’s evidence that she said it was Q’s friend who touched her and that it wasn’t [the appellant] and she denied saying either of those two things when cross‑examined.  So I now ask you once again to retire to consider your verdicts.  Should you need any further assistance, again send another note.”

86. [86]
    The appellant’s counsel indicated that she was content with the features of the cross‑examination and of the defence case extracted by the judge.^[62]

Verdicts

87. [87]
    Subsequently, the jury returned verdicts of guilty on each of counts 1 to 4.

Appellant’s grounds of appeal and submissions

88. [88]
    The appellant’s grounds of appeal and submissions substantially overlap.  They may be summarised as follows.
89. [89]
    The appellant advances two grounds of appeal against his convictions.
90. [90]
    First, he contends that the verdicts of guilty were unreasonable in that:

1. (a)
   the complainant said that another person touched her;

2. (b)
   the complainant said to others that the appellant did not touch her and did nothing;

3. (c)
   the complainant was so unreliable as to cause a miscarriage of justice;

4. (d)
   the sentence was based on a belief that the appellant has a sexual attraction to children, whereas this was not in evidence and is untrue;

5. (e)
   the judge demonstrated a bias against the appellant; and

6. (f)
   there were factual inconsistencies with the evidence and the complainant.

91. [91]
    Secondly, the appellant contends that the trial judge erred in law by:

1. (a)
   refusing to discharge the jury in its entirety; and

2. (b)
   permitting the jury to re‑watch the complainant’s evidence‑in‑chief in isolation from her cross‑examination.

92. [92]
    The appellant’s written outline of argument does not develop any submissions in support of these grounds.

Ground 1: disposition

93. [93]
    The approach to be taken by an appellate court in evaluating a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence has been set out and applied in numerous cases.  The principles are founded on what was said by the High Court in M v The Queen,^[63] the authoritativeness of which was recently affirmed in Dansie v The Queen.^[64]  The principles may be summarised as follows:

3. (1)
   The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence.  It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict.  The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.^[65]

3. (2)
   The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.^[66]

3. (3)
   That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused’s guilt.^[67]

3. (4)
   In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses.^[68]

3. (5)
   The appeal court performs its function on the assumption, in a case such as the present case, that the evidence of the complainant was assessed by the jury to be credible and reliable.  The question for the appeal court is whether, upon its examination of the record, by reason of inconsistencies, discrepancies, or other inadequacy, or in light of other evidence, the Court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt.^[69]

3. (6)
   A doubt experienced by an appeal court would be a doubt which a jury ought also to have experienced, unless the jury’s advantage in seeing and hearing the evidence is capable of resolving that doubt.^[70]

3. (7)
   If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted, or otherwise lacks probative force in such a way as to lead the appeal court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appeal court must set aside the verdict.^[71]

3. (8)
   The setting aside of a jury’s verdict on the ground that it is unreasonable within the meaning of s 668E(1) of the Code is a serious step, not to be taken without regard to the advantage enjoyed by the jury over an appeal court which has not seen or heard the witnesses called at trial.^[72]

94. [94]
    In oral submissions, the appellant sought to demonstrate that the prosecution case was wrong by asserting his own version of the facts.  This appeal is not an occasion to do so.  In circumstances where the appellant elected not to give evidence at trial, the task of this Court is to evaluate the evidence led at trial in accordance with the principles outlined in [93] above.
95. [95]
    Having carefully reviewed the whole of the record of the trial, and having paid particular attention to the matters highlighted by the appellant in his oral submissions,^[73] we are comfortably satisfied that it was open to the jury, acting reasonably, to be satisfied beyond reasonable doubt as to the honesty and reliability of the complainant’s evidence concerning counts 1 to 4.
96. [96]
    As can be seen from the outline of the complainant’s evidence set out earlier in these reasons, the complainant’s account of the appellant’s offending conduct was detailed in various material respects.  In our opinion, it was well open to the jury to find the detail of the complainant’s account to be compelling, bearing in mind the very young age of the complainant.  Moreover, in accordance with the judge’s direction to the jury, to which there was no challenge, the jury were entitled to find that the appellant’s admitted conduct, in making the videos the subject of counts 5 to 8 depicting the complainant’s vagina, demonstrated that he had a sexual interest in her.  The jury was further entitled to find that such a sexual interest bore significantly on the prospect that the complainant’s account of the appellant’s conduct said to constitute counts 1 to 4 was either dishonest or mistaken.
97. [97]
    The complainant was clear and consistent in her pre‑recorded evidence that the person who offended against her was the appellant, not someone else.  She specifically denied counsel’s suggestion that someone else had done the things she described.^[74]  On consideration of the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the person who committed the acts described by the complainant was the appellant.
98. [98]
    The other matters on which the appellant relies are principally inconsistencies or alleged inconsistencies concerning matters of detail which the jury could reasonably have viewed as entirely explicable given the age of the complainant, the passage of time, and the way in which some of the questions asked of the complainant were expressed.
99. [99]
    Upon review of the record of the trial, the Court does not experience a reasonable doubt as to the appellant’s guilt of counts 1 to 4.
100. [100]
     For completeness, although not within the ambit of the grounds of appeal, we will deal with the appellant’s assertion that the judge was biased.  That assertion is founded on a misunderstanding of a passage of the transcript which records the judge informing the complainant’s mother at the end of her re‑examination that she was free to go, followed by the witness adding that ‘[k]ids do that in fear’.^[75]  The appellant mistakenly took this to have been said by the judge.^[76]
101. [101]
     For these reasons, ground 1 fails.

Ground 2: disposition

102. [102]
     The appellant did not develop any written or oral submissions in support of ground 2.  Consequently, it may be dealt with very briefly.
103. [103]
     In our opinion, there is no merit in either of the complaints advanced by ground 2.
104. [104]
     As to the first complaint, namely the judge’s refusal to discharge the jury in its entirety, the judge’s exercise of discretion under s 57 of the Jury Act cannot be said to have been erroneous.  Nor can it be said to have given rise to any miscarriage of justice.  While counsel for the appellant at trial requested that the judge discharge the entire jury, as the outline at [67]-[71] above demonstrates, in the end, the appellant’s counsel could not explain any specific prejudice to the appellant.  Nor did counsel identify any basis to discharge the entire jury, beyond the fact that the appellant’s pleas of guilty occurred in the presence of the jury.  No miscarriage of justice arose from that fact, which resulted from the appellant’s choice to plead not guilty at the commencement of the trial and then to plead guilty in the course of it.
105. [105]
     The judge’s reasons for deciding that the trial should continue with a jury of 11, summarised in [74] above, are compelling.
106. [106]
     The appellant’s second complaint in ground 2 contends that the judge erred in permitting the jury to re-watch the complainant’s interview with police without also re-watching the complainant’s cross‑examination.
107. [107]
     The jury specifically requested that they re-watch the police interview.  The judge enquired whether they wished to also re-watch the complainant’s cross‑examination and the jury indicated that they did not wish to do so.  In these circumstances, the law does not require the judge to dictate to the jury that they re-watch the cross‑examination.
108. [108]
     Many cases have recognised the risk that evidence that is repeated to the jury more recently than other evidence may, in the absence of a warning from the judge, be given undue weight by the jury.^[77]
109. [109]
     The judge was appropriately mindful of this risk, specifically warning the jury to be careful not to place undue weight on the complainant’s police interview simply because they had seen it twice.  Moreover, the judge specifically reminded the jury of the salient features of the defence case advanced in cross‑examination of the complainant in terms to which the appellant’s counsel had agreed: see [85]-[86] above.
110. [110]
     The judge’s response to the jury’s request was, with respect, impeccable.
111. [111]
     For these reasons, ground 2 fails.

Appeal against conviction: conclusion

112. [112]
     For the above reasons, the appeal against conviction must be dismissed.

Appeal against sentence

113. [113]
     As already noted, the trial judge sentenced the appellant to three years’ imprisonment.  The appellant challenges that sentence on the ground that the overall sentence of three years is excessive.  He also contends that he did not receive adequate benefit for his pleas of guilty, apology and remorse, and that the sentencing judge placed too great a weight on the jury viewing the recordings at the trial.

The facts of the offending

114. [114]
     The trial judge made the following findings as to the facts of the appellant’s offending.  None of these findings are challenged on appeal.
115. [115]
     Over a period of six months, the appellant committed a number of sexual offences against the complainant, who was three years old at the time.  The complainant was the daughter of a friend of the appellant, who was living with him at the time of the offending.
116. [116]
     The appellant touched the complainant on the vagina (count 1).  The appellant licked the complainant’s vagina (count 3).  The appellant exposed the complainant to himself getting an erection (count 2) and exposed her to an indecent video (count 4).  The appellant recorded four videos on his telephone of the complainant’s genitalia (counts 5 to 8).  His possession of those videos constituted count 9.  The making of those videos constituted count 10.

The appellant’s personal circumstances

117. [117]
     At the time of the offending the appellant was aged 50 or 51, and was 55 years of age when he was sentenced.  The appellant had no prior criminal history.
118. [118]
     The appellant attended school through to year 12 and thereafter undertook courses and an apprenticeship as a draftsman.  The appellant has since worked as a draftsman for various government entities.
119. [119]
     Following referral to a psychologist in 2012, the appellant was diagnosed with Asperger’s Syndrome.  He has engaged in support groups with other adults suffering from that syndrome.  The judge noted that there was no suggestion that this syndrome was a cause of the offending.

The sentencing remarks

120. [120]
     The judge noted that the appellant pleaded guilty to counts 5 to 10, but did not do so until the second day of the trial, after the videos had already been played and viewed by the jury.  The judge acknowledged that the pleas of guilty involved a small saving of time in the trial, but did not accept that the pleas were demonstrative of remorse.  The judge observed that the videos were horrific to watch and that it was unsurprising that the jury found it distressing to view the footage recorded by the appellant.  The judge considered that the playing of that footage was a further abuse of the complainant and was not consistent with the appellant being remorseful or having insight into the offending.
121. [121]
     The judge observed that the courts are all too aware of the devastating, long‑lasting consequences of sexual abuse of children which can pervade every aspect of a person’s life through their adulthood.  Her Honour further observed that it is not presently knowable what enduring effects the appellant’s offending might have on the complainant.  The judge noted that, despite her very young age, it was clear that the complainant remembered what the appellant had done to her.
122. [122]
     The judge noted the maximum penalty of 20 years’ imprisonment, which reflects how seriously Parliament views the sexual abuse of children.
123. [123]
     The judge identified serious elements of the appellant’s offending.  The complainant was only three years of age at the time of the offending, and thus extremely vulnerable.  At the complainant’s age, she had no capacity to protect herself and no understanding of the wrongfulness of what the appellant was doing in filming her.  Among other things, the appellant performed oral sex on her and exposed her to a pornographic video.  The appellant betrayed the trust of the complainant’s mother, who was a long‑term friend of the appellant.
124. [124]
     The judge considered that it was necessary to impose a stern sentence to reflect the protection of the most vulnerable members of society; namely, very young children.  Further, her Honour considered that general and specific deterrence were important features of the sentencing exercise.  Denunciation of conduct as abhorrent as the appellant’s was also important.
125. [125]
     The judge considered that it was not possible to evaluate the appellant’s risk of reoffending, given his lack of insight into his offending.
126. [126]
     Applying the principles in the Penalties and Sentences Act 1992 (Qld), the judge concluded that the appropriate head sentence, to reflect all of the offending, was three years’ imprisonment.  The judge imposed that sentence on each of counts 1 to 8, to be served concurrently.  In respect of count 9, the judge imposed a sentence of 18 months’ imprisonment, to be served concurrently.  For count 10, the judge imposed no further punishment, because the making of the child exploitation material involved the same act as the recording of the four videos.
127. [127]
     Taking into account that the appellant had pleaded guilty to some of the offences, her Honour ordered that the appellant be considered eligible for parole after he had served 16 months of the sentence.

Ground of appeal

128. [128]
     The appellant’s single ground of appeal contends that the overall sentence imposed was manifestly excessive in that:

1. (a)
   the head sentence of three years was excessive;

2. (b)
   the appellant did not receive adequate benefit for his pleas of guilty, apology and remorse; and

3. (c)
   the sentencing judge placed excessive weight on the jury viewing the recordings at trial.

129. [129]
     The appellant’s outline of argument did not develop any submissions in support of these grounds.

Disposition

130. [130]
     The following principles concerning appeals against sentence are well established.
131. [131]
     Sentencing is a discretionary exercise.  An appellate court can intervene only if the appellant demonstrates either an express or implied material error.  Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter.  Implied error arises where the outcome is so unreasonable or unjust that the Court is driven to conclude that a substantial wrong has occurred.  Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.^[78]
132. [132]
     In order to determine whether a sentence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to the crime, the place that the crime occupies in the scale of seriousness of crimes of that type, and the appellant’s personal circumstances.^[79]
133. [133]
     When the complaint is that the total effective sentence imposed in respect of multiple offences is excessive, the first limb of the totality principle requires that the total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances, including those referable to the offender personally, all relevant sentencing factors, and to the total effective sentences imposed in comparable cases.^[80]
134. [134]
     Examples of sentences customarily imposed for a crime does not establish the bounds of a sound exercise of the sentencing discretion in a particular case.  Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and that there is no single correct sentence.^[81]
135. [135]
     There is no merit in the contention that the overall sentence of three years’ imprisonment imposed on the appellant is excessive.
136. [136]
     The maximum penalty of 20 years’ imprisonment, applicable to each of counts 1 to 8, reflects the seriousness of the appellant’s offending.
137. [137]
     As the sentencing judge properly recognised, there were a number of serious elements of the appellant’s offending.  The complainant was extremely vulnerable, being only three years of age.  The appellant performed oral sex on the complainant, touched her vagina and exposed her to an indecent video.  He also recorded four videos of her genitalia.
138. [138]
     There is no merit in the appellant’s contention that he did not receive adequate benefit for his pleas of guilty, apology and remorse.  His pleas of guilty related only to counts 5 to 8 and, even then, came at a late stage, after the commencement of the trial and after the videos had been played to the jury.  The judge did not consider that the appellant was remorseful.  That view was well open to the judge in light of the timing of the appellant’s pleas of guilty.  In oral argument, the appellant explained his complaint, saying that it was not fair to find him unremorseful given that he had not committed the offences.  That complaint is misconceived because the appellant’s guilt cannot be challenged in the context of an appeal against sentence.
139. [139]
     Giving full weight to the appellant’s pleas of guilty in relation to counts 5 to 8, for the reasons in [136]-[137] above, it was well open to the judge to impose a sentence of three years’ imprisonment.  The judge evidently took the appellant’s pleas of guilty into account in fixing his eligibility for parole date at less than one half of the sentence.
140. [140]
     Given the seriousness of the appellant’s offending, and the other matters referred to in [136]-[139], it cannot be inferred from the sentence of three years that the judge placed excessive weight on the jury having viewed the recordings at trial.
141. [141]
     For these reasons, the appeal against sentence should be dismissed.

Conclusion

142. [142]
     For the above reasons, both appeals must be dismissed.