R v SDX[2022] QCA 269

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  I agree with the reasons for judgment of Bond JA and with the order proposed by his Honour.
2. [2]
   MULLINS JA:  I agree with Bond JA.
3. [3]
   BOND JA:

Introduction

4. [4]
   On 22 February 2021, the appellant was tried by a jury in the District Court on an indictment alleging five counts of indecent dealing with a child under 16, under 12, under care, contrary to s 210(1)(a), (3), (4) of the Criminal Code (Qld).
5. [5]
   The offending was alleged to have occurred during the evening of 18 April 2018 when the eight-year-old complainant (KB), who was friends with the appellant’s seven-year-old son (AS), had a sleepover at the appellant’s house.
6. [6]
   As particularised by the Crown during the opening of the case, the five counts were as follows:

7. [7]
   On 25 February 2021, the jury returned majority verdicts of guilty on counts 1 and 2; a unanimous verdict of not guilty on count 3; and majority verdicts of not guilty on counts 4 and 5.
8. [8]
   The appellant appealed against his convictions on two grounds:

1. “1.The verdicts of guilty on counts 1 and 2 are unreasonable or cannot be supported having regard to the evidence.

1. 2.The verdicts of guilty on counts 1 and 2 were inconsistent with the verdict of not guilty on count 5.”

9. [9]
   During oral argument, counsel for the appellant explained that although separate grounds of appeal were articulated, the appellant advanced only one argument, namely that difference between the verdict of not guilty on count 5 and guilty on counts 1 and 2 was irreconcilable.  It was only on the basis of the alleged inconsistency of verdicts that the appellant argued that the convictions should be set aside and verdicts of acquittal entered.
10. [10]
    For reasons which follow the appeal should be dismissed.
11. [11]
    I turn first to detail the Crown case and evidence at trial.

The competing cases at trial

12. [12]
    The Crown case concerning the offending was as follows.
13. [13]
    KB and AS attended the same school together and were friends.  KB’s family and AS’s family lived on the same street.
14. [14]
    On the night the offending took place, KB was sleeping over at the appellant’s house in an ad hoc arrangement which was agreed to by KB’s mother at the request of KB.
15. [15]
    Later that night, KB and AS went to bed in the same bed.  After KB turned off the lights, AS asked his dad to stay in the bedroom until he fell asleep.  The appellant then entered the bedroom and lay in bed with the two children.  KB was in between the appellant and his son.
16. [16]
    During the night, KB woke to the appellant touching her.  The touching, which occurred over a single episode, was said to involve both the appellant touching KB’s vaginal area beneath her underwear (counts 2 and 5) and the appellant manipulating KB’s hand onto his penis (counts 1, 3 and 4).  The particular evidence concerning each count is considered in more detail under appropriate headings below.
17. [17]
    The next morning, KB was retrieved at about 8.00 am by her 10-year-old sister (JB).  When they returned home KB was observed by her mother as being tired, angry and upset.  Later that day, KB disclosed the offending to JB. Later that evening, KB’s mother promised to buy JB a book in return for JB disclosing the reason for KB’s mood.  JB wrote a note to her mother on her phone disclosing the offending.  As a result of the disclosure, KB’s mother went to police that evening and the police spoke with KB.
18. [18]
    The appellant’s case was that he did not touch KB at all.  Although the appellant’s counsel disclaimed any suggestion that KB was telling any deliberate falsehoods, he suggested that she had made up a story, for reasons known only to her, and had come to believe it.  The appellant neither gave nor called evidence at trial.
19. [19]
    The trial turned almost exclusively on KB’s credibility and reliability.

The evidence at trial

Overview

20. [20]
    The Crown adduced the following evidence.

    1. (a)
       Evidence from KB in the form of:

       1. (i)
          a police statement taken the night after the offending and tendered pursuant to s 93A of the Evidence Act 1977 (Qld); and
       2. (ii)
          a pre-recorded hearing conducted three and a half months after the offending pursuant to s 21AK of the Evidence Act and tendered pursuant to s 21AM of the Evidence Act.
    2. (b)
       Preliminary complainant evidence led through:

       1. (i)
          KB’s sister, JB, to whom KB had disclosed the offending the day after the offending;^[1] and
       2. (ii)
          the appellant’s son, AS, to whom it was alleged the complainant had disclosed the offending.^[2]
    3. (c)
       Oral evidence from:

       1. (i)
          KB’s mother, who gave evidence concerning the circumstances leading up to her police complaint the next night.
       2. (ii)
          Detective Acting Sergeant Smith, who conducted the police interview of the complainant referred to at [20](a)(i) above.
       3. (iii)
          Ms Rogers, a forensic scientist, who conducted DNA testing of the KB’s underwear and shorts; a vulval swab; and a perianal swab.  While the DNA results revealed the possibility of contribution from someone other than the complainant, the results were treated as neutral and incapable of assisting the jury in any meaningful way.
    4. (d)
       A note made by JB which she showed to KB’s mother which led to her reporting the offending to the police.  The note became exhibit 10 in the trial. The note recorded:

“Ok.. so when [AS] was scared of the dark and his dad was with them.. So she said [AS’s] dad was erm.. touching her down there.. and um was kinda trying to make her touch his cockadoodledoo..

Dont say a word to [KB] because I wasnt planning to tell you.. and my deal was she could slap my face like 10 times.. got it? Good!!!!!!  Seriously tho.. don’t.”

5. (e)
   Formal admissions made pursuant to s 644 of the Criminal Code which recorded that KB was examined by a forensic paediatrician the day after the offending which showed:

   1. (i)
      there was no evidence of injury to the hymen or surrounding genital area or perianal area; and
   2. (ii)
      the genital examination did not reveal any sign of injury or trauma,

and was treated by the parties as neutral.  The admissions became exhibit 12 in the trial.

6. (f)
   Photographs and a plan of the appellant’s house.

21. [21]
    It is presently relevant to focus in more detail only on KB’s evidence and on the preliminary complaint evidence.

KB’s evidence of the offending

22. [22]
    The following passage from KB’s s 93A statement recorded her description of what happened at the sleepover when first asked by DA-S Smith:^[3]

“Q: Very good. So tell me what you've come here to talk to me about today.

A: Um, I don't know.

Q: I heard that something happened at a sleep over. Did something happen at a sleep over? Tell me everything that happened at the sleep over and start at the beginning.

A: Um, we were UI

Q: Hmm hmm.

A: And then he wanted the light on but I wanted it off, I can't keep it on, so he wanted his dad to come in and I said, ah, I don't really want him but yeah, sure. So then he's left in with us, not the whole night and then after a while, um, he started touching my bum.

Q: Hmm hmm.

A: And he's keeping putting my hand on his private parts.

Q: Hmm hmm.

A And he’s keep on pulling me. He keep on touching me,

Q: Hmm hmm

A: UI

Q: And then what happened?

A: Um, I come back from the morning.

Q: Hmm hmm.

A: And said don’t tell them ‘cos I don't want them to know stuff, and said, yeah, sure and we just played.

Q: Hmm hmm. What happened next?

A: Um, I went to my house.”

23. [23]
    After some discussion concerning events during the day of the sleepover and the day after the sleepover, DA-S Smith brought KB’s attention back around to what happened when she and AS went to sleep.  KB said that she turned the light off, but AS wanted to keep the light on because he was scared of the dark.  She said that AS called his dad to come in and turn the light off and sleep with him “and that’s when all the stuff happened”.
24. [24]
    DA-S Smith then elicited from KB some details about the room and the bed.  KB repeated the details just mentioned, that they all went to sleep and then she woke up to “some things happening”.  At the start “[the appellant] started pulling me over” and “he kind of squashed me. He said sorry, but he said it sort of secret … But he went quiet and then, he keep on pulling me over … And then putting my hand on his hoo haa, and then he went in my pants and um under my undies, try touching me on the private part and then he tried UI but UI didn’t get to them”.
25. [25]
    KB described the “hoo haa” as the “rude part” consistent with it being the appellant’s penis.  She demonstrated that the appellant pulled her hand and put it on his “rude part” and was “doing this”; “going right round” his “private part”.  She explained that she could feel that part and it was up.  She demonstrated this, consistent with it being erect.  She agreed that her hand was around the appellant’s private part, and she could feel that it was up.  She said “I know it was because I can feel it when it ends …  It ends round like that.”  She explained that her hand was on the appellant’s private part for about 10 seconds before she pulled away.
26. [26]
    KB also elaborated on her earlier description of the appellant putting his hand in her pants and under her underwear.  She said “I tried go sleep but he’s keep on doing all this weird stuff … he got his hands and kind of like UI like that … Around there and he kept his hand like that and he went right under. Under my undies. And he UI”.  The appellant put his hand up her pants: “And then um, I couldn't get him out, so I just waited til he stopped and he stopped.”  He was feeling the top of the “front bum” where the skin is.  His hand was underneath her clothes, “And then he eventually stop and got his hand out.”
27. [27]
    It may be observed that thus far into the s 93A statement, KB’s responses had painted a clear picture of two types of indecent dealing having occurred: one in which the appellant placed her hand on his penis, and the other in which the appellant placed his hand underneath KB’s underwear and touched her in the area of the front of her vagina.  The evidence was not entirely clear as to whether there was more than one occasion of each type of indecent dealing, but KB’s use of the verb “keep” suggested that there might have been.
28. [28]
    The next part of the interview consisted of DA-S Smith exploring that possibility with KB.  She suggested to KB that after she had said the appellant had touched her on her “front bum”, she had said that he “kept on doing some more weird stuff” and then asked her to tell her about that.  That question only elicited a description of the appellant touching KB on the side of her body at her ribs.  When asked what then happened, KB said that he stopped; went to sleep; and when it was morning she told AS about the stuff and she told her sister and her mum.
29. [29]
    DA-S Smith then asked about an earlier suggestion that the appellant had tried to touch KB’s “boobies”, but KB explained that she managed to get away from that.  DA-S Smith then asked KB to tell her about when the appellant “started doing the private parts”.  And it was from this part of the interview that confusion set in concerning the sequence of events, and whether there were multiple occasions of KB having her hand placed on the appellant’s private part or of the appellant touching her on her private part.
30. [30]
    In response to the question about when the appellant started “doing the private parts”, KB indicated that it was a “different time”, but it may be observed that it was not clear whether it was a different time from a previous description of touching private parts or a different time from the failed attempt to touch her breasts.  DA-S Smith then asked KB to “tell me everything about this time that he touched your private part”.  KB then said that “[h]e keeped on doing that about three times”.  KB confirmed that happened about three times in the night.
31. [31]
    DA-S Smith then interpreted a remark which the transcript recorded as unintelligible as a remark about the appellant’s private parts.  She then stopped seeking to enquire on the subject of the appellant touching KB’s private part and asked KB to tell about when the appellant tried to get her to touch his private parts.  She then obtained an affirmative answer to a leading question which was itself apparently a misinterpretation of the answer referred to at [30] above in these terms:

“Q: Ok. Alright, ok, so when he tried to get you to touch his private part, you said it happened three times.

A: Yeah.”

32. [32]
    It was thereafter that answers were obtained which apparently formed the basis of counts 3 and 4.  In response to a request to be told about “another time” that he got KB to touch his private part, KB said that he did it the “same way”.  It may be noted that was a response to leading question.  However, KB did then volunteer that there was a “third time” at which “he was just keeping my hand there”.  DA-S Smith then obtained KB’s assent that “the third time was when you put your hand on his private part and kept it still”.  She then obtained KB’s assent that they had “spoken about the third time, and we’ve spoken about the first time”.  She then asked KB to tell her about the second time and was told that “it was the same as the first”.
33. [33]
    DA-S Smith then asked what happened next and elicited answers which apparently formed the basis of count 5.  After the previous conduct, the appellant “did this bit again”.  His hand again “went under my underwear”.  He used two fingers to touch “my front bum”.  The appellant touched her not exactly in the middle of her front bum but “near the back”.  She provided clarifying detail about this position.  She could feel his finger moving and going in circles.  She demonstrated that the touching was with two fingers. This was again on the “outside” of her vagina.
34. [34]
    In her examination-in-chief during the s 21AK hearing, she confirmed the truth of what she had stated in the s 93A statement.  She explained that her hand was touching his “diddle” on top of his shorts.  She could feel it through his shorts.  At that point the appellant’s hand was grabbing her wrist.  However, in response to whether she remembered the appellant holding her hand and having her touch his “diddle” three times that night she said “I don’t remember how many times but I remember”.  She confirmed that the appellant had touched her private part on her skin under her underwear.  She confirmed that she had told police that he did it a second time.
35. [35]
    In cross-examination during the s 21AK hearing, counsel for the appellant elicited that at some stage during the day after the night in question, KB and AS had had some sort of fight in which AS had called KB fat and she had responded saying he was chubbier than she was.  Later he elicited from KB that when KB was taken to the police station to give the s 93A statement, she realised that her sister must have told her mother about what she had told her sister; that she had been upset; and indeed that she had been so upset that she had run away from the police station.  Later he put to the appellant’s case theory to KB, namely that there was no occasion in which the appellant touched her in bed on the night in question; that he had not touched her under her underwear; that he had not placed her hand on his private part; that it was a made up story; and that things had got out of hand when she found out that her sister had told her mother and the adults got involved. KB denied all of those propositions and maintained the truth of her evidence.

The preliminary complaint evidence

36. [36]
    In the s 93A statement, KB said that she told AS what his father had done during the night, but he returned to sleep.  She also later said she told him in the morning.  She said that she told him that his father had “touched my rude parts” and that “he was putting my hand on his private part”.  In cross-examination during the s 21AK hearing, she confirmed both occasions.
37. [37]
    AS was interviewed for the purpose of his s 93A statement at school two nights after the sleepover.  He related that KB had slept over, but said that he slept and that he “didn’t know whatever happened because I was just sleeping”.  Both in the s 93A statement and the subsequent s 21AK hearing, AS denied that the KB disclosed the offending to him at all.
38. [38]
    In the s 93A statement, KB said that she had told her sister JB about how the appellant was touching her rude part and that he put her hand on his part and was touching her everywhere.  She said that she told JB while they were “at the servo” when her mother was getting some stuff.  In cross-examination during the s 21AK hearing, she confirmed that statement.  She said that she had told JB not to tell their mother and that if she did she would punch her 10 times.
39. [39]
    JB’s evidence during the s 21AK hearing was that KB had told her that she and AS had had an argument about calling one another fat.  Soon after that AS and the appellant came to their home and spoke to their mother.  Whilst that had occurred KB had told JB about the appellant touching her and trying to get her to touch his penis.  JB perceived that KB was about to tell her something serious.  She said that she had a discussion with her mother when they went for a drive and that she had told her mother what she knew, via typing a message on her mother’s phone whilst she was in the car.  KB was in the car with them at the time.

Summing up and further directions

40. [40]
    No criticism was advanced about the trial judge’s summing up.  Relevantly, the trial judge directed the jury about the elements of the offences, and carefully summarised the evidence insofar as it related to each offence.  He also gave appropriate directions about the need to return five separate verdicts; the need to assess the evidence carefully in relation to each count; and that a reasonable doubt in relation to an element of a particular offence would necessitate a verdict of not guilty on that count but observed, in these terms:

“That doesn’t necessarily mean you can’t convict of the other counts, or some of the other counts. You have to consider why you have some reasonable doubt about that part of her evidence and consider whether it affects the way you assessed the rest of her evidence. That is, whether your doubt about that aspect of her evidence causes you to have a reasonable doubt about the part of the evidence relevant to any other count.”

41. [41]
    The jury retired to consider the verdict at 1.41 pm on day three of the trial.
42. [42]
    At 4.26 pm the same day, the jury by way of a note indicated that they were having difficulty achieving unanimous verdicts and the primary judge indicated to counsel that he would give the jury what he described as a “truncated version of the Black direction”.  He proceeded to do that.
43. [43]
    The jury returned at 9.30 am the next day to continue their consideration.  At 3.16 pm, the primary judge gave the jury the benchbook Black direction after the jury provided another note indicating that they were deadlocked on counts 1, 2, 4 and 5.  The jury note revealed that the jury had reached a unanimous verdict in relation to count 3.  The trial judge also directed the jury that if their decision was to acquit on count 3 based on the complainant’s concession in her s 23AK pre-recorded evidence that she did not remember that occasion, then there was “no basis for differentiating” between counts 3 and 4 since her evidence in the s 21AK pre-record was “really identical” in relation to those two counts.
44. [44]
    Despite these directions, at 5.07 pm the jury indicated by note that they remained “irretrievably locked on four of the five counts. No unanimous decision on counts 1, 2, 4 and 5.”  The trial judge then gave the jury the benchbook majority verdict direction.
45. [45]
    No complaint is made concerning any of these directions.
46. [46]
    At 5.36 pm the jury returned the verdicts recorded at [7] above, which included majority verdicts on counts 1, 2, 4 and 5.

Consideration

47. [47]
    The Court of Appeal in R v Silcock [2022] QCA 234 recently restated the law concerning inconsistent verdicts, in these terms:^[4]

“In R v GAW [2015] QCA 166 Philippides JA (with whom Margaret McMurdo P and Holmes JA agreed) by reference to M v The Queen (1994) 181 CLR 487, Jones v The Queen (1997) 191 CLR 439 and MacKenzie v The Queen (1996) 190 CLR 348 summarised the principles concerning inconsistent verdicts as follows:

“The principles concerning inconsistent verdicts are well-established. Where alleged inconsistency arises in the jury verdicts and reasonableness’; that is, whether the party alleging upon different counts affecting an accused, the test is one of ‘logic inconsistency has satisfied the court that the verdicts cannot stand together because ‘no reasonable jury, who had applied their mind properly to the facts in the case could have arrived’ at them.

However, respect for the jury’s function results in a reluctance in appellate courts accepting a submission that verdicts are inconsistent in the relevant sense, so that:

‘... if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.’

In that regard, ‘the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt’. Alternatively, the appellate court may conclude that the jury took a merciful view of the facts on one count; a function which has always been open to a jury.

It is only where the inconsistency rises to the point that the appellate court considers intervention is necessary to prevent possible injustice that the relevant conviction will be set aside. While it is impossible to state hard and fast rules, the following provide examples of relevant inconsistency; where the different verdicts returned by the jury are an affront to logic and common sense which is unacceptable, and strongly suggests a compromise in the performance of the jury’s duty, or which suggests confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction on the applicable law.””

48. [48]
    In the present case, there was a logical way to reconcile the verdicts.

49. [49]
    As I have explained, KB’s s 93A statement painted a clear picture of two types of indecent dealing which met the particulars advanced by the Crown having occurred in a single brief episode: one in which the appellant placed her hand on his penis over his clothing, and the other in which the appellant placed his hand underneath KB’s underwear and touched her in the area of the front of her vagina.  That evidence was first elicited by way of questions which did not involve leading and which did not involve any confusion in the sequence of events.

50. [50]
    The credibility of KB’s evidence in this regard was supported by the details of her preliminary complaint to her sister.  Although there was a conflict between the accounts of KB and of AS concerning whether a preliminary complaint was made to him, that conflict was for the jury to resolve.  It did not support the appellant’s argument concerning inconsistency of verdicts.
51. [51]
    There was some uncertainty as to whether by the terms of her initial description to police, KB intended to communicate that there was more than one discrete occasion on which each type of indecent dealing occurred.  It was in the course of the interviewing officer’s attempts to clarify that issue that some uncertainty was introduced on that question.
52. [52]
    As I have explained, the passages of the s 93A statement which formed the basis for charging two further instances of the first type of indecent dealing and one further instance of the second type occurred in the course of a sequence of leading questioning, including leading questioning which was based on a mistaken summary of a previous answer.  The question introduced a degree of confusion concerning the sequence of events and, arguably, uncertainty as whether there were multiple occasions of each type of indecent dealing.
53. [53]
    There was a qualitative difference between the evidence that each type of indecent dealing happened, and the evidence that each type of indecent dealing happened more than once and in the sequence alleged by the Crown.  That qualitative difference is a way of explaining conviction on the first count of each kind of dealing and not guilty verdicts on the other counts.
54. [54]
    Moreover, so far as the kind of indecent dealing which was the subject of count 1 is concerned, KB’s evidence during the s 21AK hearing that “I don’t remember how many times but I remember” is also a way of explaining conviction only on the first count of that kind of dealing and not guilty verdicts on the other two.
55. [55]
    The result is that the jury could well have been persuaded that KB was a credible and reliable witness in relation to her evidence that each kind of indecent dealing happened at least once during the brief episode which she described, but formed the view that her evidence was not entirely clear or reliable as to the sequence within which events occurred and whether there was more than one occasion of each type of indecent dealing.
56. [56]
    The appellant has not established that the difference between the verdict of not guilty on count 5 and guilty on counts 1 and 2 is irreconcilable.  No miscarriage of justice has been established.

Conclusion

57. [57]
    The appeal should be dismissed.