R v Aitau[2022] QCA 221

SUPREME COURT OF QUEENSLAND

1. [1]
   McMURDO JA:  The appellant was convicted of five offences of a sexual nature against the same complainant who was at relevant times 11 or 12 years old.  The appellant and his wife (whom I will call N) were her foster parents.  There was an offence of maintaining a sexual relationship with the child and there were four offences of indecent treatment of her.  He appeals against his convictions on the basis that the jury was not properly directed, in one respect as to the standard of proof and in another respect, as to preliminary complaint evidence.

The relevant evidence

2. [2]
   The offence of maintaining an unlawful sexual relationship was alleged to have been committed in a period between January 2014 and December 2015.  The complainant was interviewed by police on 7 September 2017.  Her evidence was contained in a statement under s 93A of the Evidence Act and in pre-recorded evidence given in May 2019 and March 2020.
3. [3]
   The complainant’s evidence related to the four occasions which became the basis of counts 2, 3, 4 and 5 and related other, uncharged acts.
4. [4]
   Her account of what became count 2 was that the appellant touched her vagina while she was sitting on his lap in the lounge room on an evening when N was at work.  She said that this incident occurred after she asked him for permission to get some cream to apply to herself for chafing.  He required her to bring the ointment to him and said that he would apply it.  She refused to let him do so, and that did not occur.  However, he then insisted that she sit on his lap, and when she did so he touched her leg and moved his hands towards her vagina, touching her vagina on the outside of her underwear.  He continued to do so as she tried to push his hand away.  She began to cry and got off the appellant’s lap and went to her room.  He told her that she was not allowed to tell anyone what he had done.  She said that within a few days, she did tell N something about this incident, and that N spoke to the appellant and was told by him that nothing improper had occurred.  She said that N made her apologise to the appellant for saying such things.
5. [5]
   Her evidence about what became count 3 was that one evening, after the appellant had sent to bed another child who lived in the house, the appellant told the complainant she could stay up and watch television.  As she did so, the appellant told her to come over to him.  She sat next to him and the appellant moved his hands up to her vagina and touched her vagina on the outside of her clothes.  She stood up and went to bed.  The appellant followed her and apologised for what had just occurred.  He told her that she could not tell anyone about it.
6. [6]
   The conduct which became that charged by counts 4 and 5 was alleged to have occurred on the same evening but on a separate occasion from either of the other counts.  After N had gone to work one evening, the complainant went to bed in her room.  The appellant called out to her and told her to come into his bedroom.  She did so and he pushed the door closed.  He made her lie next to him by pushing her onto the bed.  The appellant was lying on his back and the complainant was next to him.  She was playing with an iPad when he then took that from her, pulled her on top of him and pushed her down onto his legs.  Her head was on his bare chest and she could feel his penis under her stomach and his hands on her buttocks.  That became the basis of count 4.  She told him that she was tired and wanted to go back to her own bed.  She did so but some time afterwards, he called her back to his bedroom and again told her to lie down beside him.  He made her do so.  He touched her vagina with his hands, on the outside of her clothes.  That became the basis of count 5.
7. [7]
   In her statement to police, the complainant said that this conduct “just happened all of the time whenever [N] went to work.”^[1]  At another point, she told police that N worked every night, but “[i]t didn’t happen every night but it happened most nights”.^[2]  She said that the conduct “only usually happened in the lounge” of the house where they lived.^[3]  The conduct involved the touching of her vagina.^[4]  She could not say how many times this occurred.^[5]
8. [8]
   The prosecution adduced evidence, as evidence of a preliminary complaint, from a police officer, Ms Humphries, and a youth support coordinator at the complainant’s school, Ms Corneloup.  Ms Humphries was a school-based police officer in 2017 when she received a message from Ms Corneloup about the complainant.  She spoke to the complainant in the presence of Ms Corneloup.  The complainant told her that she had run away from the appellant’s house at one time because “[he] did things to me”.^[6]  The complainant told her of the incident that became the subject of count 2.  She also related the incident which became the subject of count 4.  She said to Ms Humphries that the appellant “did things to me all the time; like, for a whole year before I ran away.”^[7]
9. [9]
   Ms Corneloup’s evidence was that in October 2016, she began regular contact with the complainant as her case manager at the school.^[8]  It was then that the complainant told her that in 2014 and throughout the following year, conduct of this kind occurred when N was working nightshifts.  She was told by the complainant that she had tried to tell N of what had happened but that N had not believed her.^[9]  She was told that the appellant “touched her inappropriately many times with many similar instances occurring over the duration of that year”.^[10]
10. [10]
    The appellant did not give or call evidence.  His case as put to the complainant was that he had never touched her vagina and never had her lie on him or feel his penis.^[11]

The first ground of appeal

11. [11]
    The first ground of appeal relates to count 1 only.  The jury was instructed that the proof of that count required proof beyond reasonable doubt of three elements.  The first and second elements were that the appellant was over 18 and the complainant was under 16.  The third element to be proven beyond reasonable doubt was that the appellant maintained an unlawful sexual relationship, which the judge said was a relationship that involved more than one unlawful sexual act.  His Honour continued:

“‘Unlawful sexual act’ means an act that constitutes an offence of a sexual nature which is not justified, authorised or excused by law. Here, the offences of a sexual nature upon which the prosecution relies is the defendant touching and/or rubbing the complainant’s vagina on a frequent basis over the relevant period. The particularised acts in counts 2 to 5 also form part of the unlawful sexual relationship. ‘Maintained’ carries its ordinary meaning, that is, carried on, kept up or continued. It must be proved that there was an ongoing relationship of a sexual nature between the defendant and the complainant. There must be some continuity or habituality of sexual conduct, not just isolated events.

So all of you must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship with the child, involving unlawful sexual acts, existed. It is not necessary that all of you be satisfied about the same unlawful sexual acts. The defendant’s case, as you are aware by now, is that he did not maintain a sexual relationship with the complainant. If you are satisfied beyond reasonable doubt of those three elements, ladies and gentlemen, then you will return a guilty verdict with respect to that offence. If you are not satisfied of all of the three elements beyond reasonable doubt, then you will acquit, that is, you will return a not guilty verdict with respect to count 1 on the indictment.”

12. [12]
    At the commencement of the summing up, the judge provided the jury with what he described as an information sheet.  Relevantly, it was in identical terms to the passage from the oral directions which I have just quoted.
13. [13]
    It was open to the jury to convict the appellant on the basis of a combination of sexual acts, whether as charged by counts 2 to 5 or otherwise.  It was unnecessary for the jury to be unanimous as to the acts upon which they found the offence proved.^[12]
14. [14]
    The appellant’s argument is that the directions were insufficient, in that it was not conveyed to the jury that they could convict on the basis of one or more uncharged acts only if satisfied that those acts occurred beyond reasonable doubt.  It is submitted that there is a possibility that one or more jurors acted upon uncharged acts without being satisfied of the occurrence of that act or acts to the requisite standard. 
15. [15]
    The argument cannot be accepted.  The jury was given unambiguous instructions that they were required to be satisfied of each element of the offence beyond reasonable doubt.  More specifically, they were told that they had to be satisfied beyond reasonable doubt that the defendant had maintained an unlawful sexual relationship, being a relationship that involved more than one unlawful sexual act.  Those directions sufficiently conveyed to the jury that they had to be satisfied beyond reasonable doubt that more than one unlawful sexual act had occurred.  The jury could not have understood that they could convict if left in doubt as to whether there had been more than one unlawful sexual act.
16. [16]
    Moreover, having regard to the unanimous verdicts on the other counts, there was no real prospect that the jury, being satisfied of those counts, nevertheless relied upon uncharged acts to convict on count 1.
17. [17]
    The first ground of appeal fails.

The second ground of appeal

18. [18]
    By this ground the appellant seeks a re-trial upon all five counts.
19. [19]
    The complaint is that the judge did not direct the jury as to the use which could be made (or not made) of the evidence by the complainant that she spoke to N after the incident the subject of count 2 and told her something of that incident.
20. [20]
    In her evidence in chief, at a pre-recorded hearing, the complainant said that on the day after the incident the subject of count 2, she “had tried to tell N about what had been happening.”  She said that N then “confronted [the appellant] about it, and he told her that he was just trying to help.  So I had to apologise to him for making – for telling N, because she said it wasn’t true”.^[13]  In cross-examination, when asked about the incident the subject of count 2, there was this evidence:^[14]

“And did you tell [N] that it felt a bit uncomfortable because he was a man doing it or anything like that?---I told them it felt uncomfortable because – I told her it felt uncomfortable because I was on his knee.

I see. All right. When did you reckon you had that conversation with [N] about it being uncomfortable?---I don’t know the exact date but after that whole cream thing had happened, I had gone to bed and then – I’m not sure when I had spoken to her but I had told her that I felt uncomfortable about it and then, she had spoken to him and he had denied anything. And he reckons he was just trying to help.

Yes. All right. So you readily – it’s your recollection now that despite there being certain things that you just couldn’t – weren’t able to say, you’re now asserting that you, in fact, told [N] about this event immediately upon seeing her; is that right?---I told you that I felt uncomfortable - - -

HIS HONOUR: I think she said she doesn’t know when – I’m sorry.

COUNSEL: Sorry. Yes. Sorry, your Honour. Your Honour is right.

HIS HONOUR: She said she didn’t know when she spoke to [N].

COUNSEL: Yes, all right. So how – can you put some timeframe on when it was that you spoke to [N]?---It was not long after the day he had done that.

Right. So you had no difficulty in telling [N], on your account?---Pardon me?

You didn’t have any difficulty telling [N] within a couple of days of this - - -?---I said to her – some – all I said to her was cream was – when I needed to put cream on, he tried to help me and it made me feel uncomfortable. And then, she asked him about it and he denied any involvement in it.

I see?---And I was made to apologise for something I had no reason to be sorry for.”

(Emphasis added.)

21. [21]
    As noted earlier, preliminary complaint evidence was given by two witnesses, Ms Humphries and Ms Corneloup.  Appropriate directions were given as to the use which the jury could make of that evidence of preliminary complaint.  The argument is that a similar direction was required for the evidence of this conversation between the complainant and N after the incident the subject of count 2.  It is said that the jury had to be directed that the evidence did not constitute proof of the commission of any offence and that the judge’s omission to do so occasioned a miscarriage of justice because the jury may have treated this evidence as proof of what actually occurred.^[15]
22. [22]
    Evidence of a preliminary complaint is admissible by the operation of s 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld).  A preliminary complaint is evidence of a complaint made by the complainant “about the alleged commission of the offence”.  In her evidence in chief, the complainant said that she had tried to tell N “about what had been happening”.  When asked whether this was just “a general conversation, or was it in relation to one of those specific things you told police about”, she said that it was “in relation to what had happened … it was the incident with the cream.”  The extent to which she related that incident was clarified in the cross-examination which I have set out.  She told N that she felt uncomfortable because she was on his knee, and because he tried to help her to apply the cream.  On her account, she conveyed sufficient of the incident to reveal her discomfort that he was behaving improperly towards her.  But she did not relate the act which constituted the offence charged by count 2 or any other charged or uncharged sexual act.  Consequently, the evidence was not admissible as evidence of a complaint made by her about the alleged commission of the offence.
23. [23]
    The evidence was nevertheless admitted and without objection, indeed most of it came in cross-examination.  In the prosecutor’s closing address to the jury, he sought to use the evidence against what he thought might be an argument to follow from defence counsel, namely that the complainant’s failure to complain prior to speaking with Ms Corneloup should cause or contribute to a reasonable doubt.  The evidence was put to the jury to explain why no preliminary complaint was made until that made to Ms Corneloup.  It was not advanced as evidence of a preliminary complaint made to N.
24. [24]
    There was no risk that the jury could have used this evidence as proof of the occurrence of the act as charged by count 2 (or any other charged or uncharged act).  The direction which a trial judge must give as to the use which might be made of a preliminary complaint was not required and could only have confused the jury.
25. [25]
    This ground of appeal fails.

Order

26. [26]
    I would order that the appeal be dismissed.
27. [27]
    DALTON JA:  I agree with the order proposed by McMurdo JA and with his reasons.
28. [28]
    KELLY J:  I agree with the reasons of McMurdo JA and with the order proposed by his Honour.