R v MKO[2022] QCA 272

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Flanagan JA.

2. [2]
   McMURDO JA: I agree with Flanagan JA.
3. [3]
   FLANAGAN JA:  The appellant appeals his conviction for maintaining an unlawful sexual relationship with a child under 16 years, which was recorded in the District Court at Beenleigh on 17 September 2021 after a four day jury trial before Dann DCJ.
4. [4]
   The count on the indictment reads as follows:

5. [5]
   The complainant was the biological son of the appellant.
6. [6]
   There are three grounds of appeal:

   1. (a)
      the verdict of the jury was unsafe and unsatisfactory having regard to the evidence (Ground One);
   2. (b)
      the directions warning the jury about the specific features of the case which affected the complainant’s credibility and reliability were inadequate (Ground Two); and
   3. (c)
      the learned trial judge misdirected the jury on the elements of the offence (Ground Three).

Ground One: The verdict of the jury was unsafe and unsatisfactory having regard to the evidence.

7. [7]
   The issue raised by this ground of appeal is whether this Court, as an appellate court, is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence pursuant to s 668E(1) of the Criminal Code (Qld).^[1]  On the authority of M v The Queen,^[2] that involves a determination as “to whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the [appellant] was guilty.^[3]
8. [8]
   In Pell v The Queen^[4] the High Court observed:

“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable.  The court examines the record to see whether, notwithstanding that assessment – either 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 proof of guilt.”

1. (a)
   The complainant’s evidence

9. [9]
   The complainant’s evidence consisted of a video interview with police made on 6 October 2017 tendered pursuant to s 93A of the Evidence Act 1977 (Qld) and evidence given in court on 23 August 2019 pursuant to s 21AK of the same Act.  The complainant was eight years of age when interviewed by police and 10 years of age when he gave his evidence in court.
10. [10]
    Prior to being interviewed by police, the complainant was not informed what the police wished to speak to him about.  This was confirmed by the complainant in the interview.  When asked what he was there to talk about, he replied “I have no idea” and “my mum didn’t even tell me”.
11. [11]
    The interview commenced with general questions concerning the complainant’s sister and mother.  The complainant was asked to tell police “everything about Dad”.  The complainant stated that his father would buy him a Lego set when the complainant was angry.  If he became angry too much his father would not buy him a Lego set but would give him “a punishment”.  This consisted of the father telling the complainant to go to his room and not receiving dessert.  The complainant referred to his mother and father being “split up”.  When asked whether he received other punishment, the complainant stated that his father sometimes smacked his bottom and yelled at him.  His father would pull down his pants and smack his bottom.  Other times the complainant was “grounded for like a week” and not allowed to use his iPad or internet for a week.
12. [12]
    The complainant referred to an occasion where he fell off his bike and injured his arm.
13. [13]
    The complainant would see his father on Friday night, Saturday and Sunday.
14. [14]
    When asked what other things he did with his father, the complainant stated “I play games”.
15. [15]
    When asked whether there are other games that he and his father played, the complainant responded that there was one game but he didn’t think it was really a game.  It was a thing that his father told him not to talk about and was “kind of private”.  The complainant referred to it as being “very private” and that his father would “go ballistic”.  He stated that “it’s kind of gross” … “sucking doodle”.  When asked what he meant by “sucking a doodle” the complainant responded “like doing that to your doodle…it’s like up and down”.  The complainant then stated “and then I suck my Dad’s doodle he puts it up my bum and that and yeah.  Just don’t tell me Dad…he’ll go ballistic and my Mum…cause my Dad said keep it between us two…every time I go to Dad’s every night I do it…when I was like five years old”.  The complainant explained that the conduct commenced at his father’s house when his mother was still living there.  When asked when was the last time it occurred, the complainant stated “it was two nights ago”.  The complainant told police that he didn’t really want to do it because “I think it’s disgusting” and that “I didn’t like doing it”.  He thought his father did it when the complainant went to sleep.  The complainant explained:

“Well by the time when I wake up like his doodle when I see him doing that his um thing squirts out like pee…And I felt some of that, up my bum.  I felt some of it.”

The complainant continued:

“He puts it up my bum then it comes out and like all like drippy.  And I saw this little bottle and it smells exactly like it.”

16. [16]
    Police asked the complainant “so two nights ago you said that was the last time it happened?...did it happen or do you think it happened?”  The complainant responded “I think it happened”… “I don’t think I’ve ever known that it has happened”.  The complainant further explained:

“I mean like I think it happened cause I don’t really have proof but I do have proof….I can prove that my dad did it…Because he puts it up my bum and I think that it really like and I really do not so I think he did that because it felt all weird and stuff comes out and yucky stuff”.

17. [17]
    The complainant described the feeling of his father putting his penis up his bottom as being “very weird” … “like, like something, it feels like pooh going up your bum”.  When asked whether it hurt, the complainant replied “Not really but he puts it in too far that’s when it hurts.”  The complainant referred to sucking his father’s penis and “stuff still comes out of it into my mouth and that it’s like disgusting”.  He continued:

“He like, like I suck it, like I have to go in and out, in and out then dad pushes my head so far down that it touched my lungs so I like said stop.”

18. [18]
    The complainant stated that his father told him not to tell anybody every time the conduct occurred and that if he did tell someone “he would chop my neck off”.
19. [19]
    The complainant reiterated that the conduct commenced when he was five years of age and that when it first commenced “it wasn’t so bad ‘cause I didn’t have to suck it or anything, but now I hate it.”  He referred to his father doing “everything the same”.  He request police not to tell his father “or he’ll chop my head off”.
20. [20]
    The complainant also referred to sucking his father’s nipple.
21. [21]
    He identified the place where the conduct occurred as being in his father’s bedroom.  When his mother was still living with him he referred to the conduct happening in his room.  The conduct would occur when he was home alone with his father.
22. [22]
    In his court evidence-in-chief, the complainant could not recall telling police that he was asleep when the conduct occurred.  When asked whether he was asleep when his father did things to him the response was “no”.
23. [23]
    In cross-examination, the complainant gave the following evidence:

    1. (a)
       he could not recall telling police that he hurt his arm when he fell off a bike.  He stated that he had never fallen off a bike;
    2. (b)
       he agreed that sometimes his brain makes him say things that aren’t true;
    3. (c)
       sometimes his brain tells him to make up stories to tell people;
    4. (d)
       he is good at making up stories;
    5. (e)
       he has a good imagination;
    6. (f)
       he agreed that he had told stories to people that were not true about other people;
    7. (g)
       when asked about this father buying him Lego sets, he stated he would receive one if he became stressed but then agreed that the only time he would receive a Lego set was as a reward for good behaviour;
    8. (h)
       he agreed that his father would not buy him Lego sets when he got angry;
    9. (i)
       he agreed that when he told police that his father would buy him a Lego set every time he got angry that this was not true;
    10. (j)
        he agreed that his father did not use the word “grounded”;
    11. (k)
        he agreed that his father had never grounded him;
    12. (l)
        he agreed that his father had not said that he could not use his iPad for a week;
    13. (m)
        he agreed that when his father smacked him on the bottom he did not pull down his pants.  He agreed that when he told police that his father would pull his pants down and smack him on the bottom, that this was not true;
    14. (n)
        he stated that at school the boys would show him their penises but he told them to stop;
    15. (o)
        he said that it was not correct that the offending happened when he was asleep and that in fact, he was awake when the offending happened.  He said he was trying to guess when he said the offending happened when he was asleep;
    16. (p)
        even though he told police the offending happened at night, in cross-examination he claimed it happened during the day.  He would sleep in his father’s bed, although his father would sleep on the lounge they would be in bed together;
    17. (q)
        when he referred to his father “chopping his neck off” he meant to say that his father would make him get into trouble “super bad”;
    18. (r)
        the complainant recalled the day after being interviewed by police, telling his mother that he had watched a video on his iPad called “Real Life Dads and Sons Doodle Videos”.  The  complainant stated that the video was actually on his father’s computer.  He wasn’t able to show his mother the video on his iPad because it was on his father’s laptop;
    19. (s)
        he recalled telling his mother subsequently that the story about the video on his iPad was all untrue but he said that because “I could see him again if I said that none of it was true.  I thought that I could see him again”;
    20. (t)
        he claimed to have watched this video on every occasion that the offending took place.  He omitted this from his statement to police because he either did not have enough time or forgot;
    21. (u)
        he insisted he told his mother about the video but the mother in her evidence denies that this conversation ever occurred.  Later in his cross-examination he stated that he had not watched a video of that type and he had lied when he told his mother that he had;
    22. (v)
        he told his mother words to effect of “Mummy, I made it up, I wanted to see what would happen.”  This was confirmed by his mother;
    23. (w)
        he could not recall telling his mother that his father had done things to him on the couch in the house while his sister was watching television;
    24. (x)
        he agreed that his father had never done things to him on the couch while his sister was watching television;
    25. (y)
        he told his mother that the allegations were not true.  He agreed under cross-examination that he had said that, but then said that that comment was itself a lie.  He admitted being fearful of being in trouble if he was caught lying about the allegations;
    26. (z)
        he admitted to telling his mother that the allegations were a lie to avoid having to be examined by a doctor.  This was confirmed by his mother in her evidence;
    27. (aa)
        he explained the process during which he had lied as his “brain just flipped from good to bad, bad to good”;
    28. (bb)
        he was wrong when he told police that he had not spoken to anyone about the allegations because he told another boy.  He was worried that the police wanted to get him in trouble for what he had done with the boy.

(b) The mother’s evidence

24. [24]
    The mother married the appellant in 2007 and they separated in 2017.  Prior to their separation they had resided together in the family home.  They had two children, the complainant and his older sister.  The mother stated that the complainant rarely spent time alone with the appellant and that there were only six nights in total where the complainant had spent the night at the appellant’s residence.  The complainant was not in the appellant’s care two nights prior to the complainant speaking to police.  The complainant had told his mother that some of the offending took place in front of his sister on the couch.
25. [25]
    The mother stated that the complainant suffers from ADHD, speech and language impairments, dyslexia, unspecified learning difficulties and autism spectrum disorder.  The complainant saw a psychologist and a psychiatrist from the age of five years old.  He was not medicated at the relevant time.  He had exhibited a number of behavioural issues, some of which include telling lies and cheating.  He behaved badly at school.  He gave ultimatums to teachers, he ran away, he bit a teacher and on one occasion he threw a knife at a teacher.  The mother was called to the school every couple of days as a result of the complainant’s bad behaviour.

(c) The sister’s evidence

26. [26]
    The complainant’s sister’s evidence was given pursuant to s 21AK of the Evidence Act.  A previous video recorded interview with police was also tendered. 
27. [27]
    The sister confirmed that the complainant would sleep in his father’s bed which was in the room next door to hers.  Her father would sleep on the couch in the living room.

(d) The preliminary complaint evidence

28. [28]
    Another boy described playing ‘truth or dare’ with the complainant at the toilets at school.  The complainant exposed his penis and caused the other boy to pull down his pants.  The complainant showed the boy his bottom.  The complainant touched the boy’s penis.  The boy stated that it was the complainant’s idea “cause he telled me that his Dad does to him”.  There was talk of “secret massages”, including putting another “person’s doodle up your bottom”.  It was in this context that the complainant described to the boy the appellant doing similar acts to him.  Following these disclosures, the boy told his mother who then informed the school who subsequently informed the complainant’s mother and the police.

(e) Police evidence

29. [29]
    A police officer gave evidence that nothing had been recovered from an examination of the complainant’s iPad and that no examination had been conducted in relation to the appellant’s laptop.

(f) Admissions

30. [30]
    It was an admitted fact that the complainant had been examined by Dr Mills.  Dr Mills’ findings neither confirmed nor excluded the possibility of penile and/or digital penetration of the complainant’s anus at some time prior to the examination.  It was also admitted that two documents were held within the student file of the complainant with the records maintained by his school.  These documents included a statement made by the complainant to a teacher that when he was in trouble and his parents collected him from school his parents would hurt him and he suggested to the teacher that the teacher would not want that to occur.  The other document concerned a discussion between the complainant and a teacher about a new folder.  The complainant told the teacher that his mother had broken his old folder by using a knife.  The complainant’s mother denied any such occurrence.

(g) Consideration of ground 1

31. [31]
    The appellant submits that the complainant’s account, despite being accepted by the jury, contained such inconsistencies, discrepancies and inadequacies which reduced the probative value of the evidence to a point where the jury must have harboured a reasonable doubt about the appellant’s guilt.  In particular, there were significant discrepancies between what the complainant told police and his evidence in court.  He told police that the offending happened at night whereas when cross-examined he claimed that it happened during the day.  He made admissions that he told a number of lies.  He accepted, for example, that his father had not threatened to “chop his neck off” if he disclosed the offending.  The complainant would lie to teachers and demonstrated manipulative behaviour by suggesting to a teacher that if he got into trouble and his parents had to collect him, they would hurt him and that the teacher would not want this to occur.
32. [32]
    The appellant further submits that there was very limited opportunity for the offending to have occurred and, with respect to the final incident, it could not have occurred.  In light of the mother’s evidence that the complainant was not in the care of the appellant two days prior to speaking to police, the complainant’s evidence cannot be accepted that the most recent offending occurred within that timeframe.  It should also be accepted that the complainant did not inform his mother that some of the offending took place on the couch in the same room where his sister was watching television.
33. [33]
    The appellant submits that the complainant’s description of the offending itself was vague and not indicative of a lived experience.  The appellant accepts however, that perhaps a notable exception to the lack of detail is the complainant’s description of ejaculate.
34. [34]
    The respondent accepts that the complainant engaged in manipulative behaviour and told a number of proven lies.  The respondent submits however, that most if not all of these features were drawn to the attention of the jury by counsel and her Honour during the summing up which relevantly included a Robinson direction.  The respondent further submits that the complainant was a young boy at the time of the offending and at the time he spoke to police and gave evidence.  As a result, significant lenience must be afforded to his inconsistencies and discrepancies on account of his child-like reasoning and recall:

“This youthfulness permeated many of the bases said to lead to a conclusion of unreasonableness such as his delay, his exaggeration, his conflation of dates and terms and informs his scant detail.”^[5]

35. [35]
    In R v Miller (2021) 8 QR 221 the court (Sofronoff P, Morrison JA and Ryan J) at [13], [16] and [18] stated as follows:

“[13] The statement made in M v The Queen (1994) 181 CLR 487, 494 has been applied many times and appeals that rely upon this ground have become commonplace in this Court. This is despite the fact that the High Court, as well as intermediate courts of appeal, have emphasised and re-emphasised that “the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.” For this reason, a court of criminal appeal “is not to substitute trial by an appeal court for trial by jury”.

…

[16] In our respectful opinion, not enough attention has been given to the limitations enunciated in M v The Queen (1994) 181 CLR 487 and which are consistent with early judicial appreciations of the limitations of an appeal against the verdict of a jury on a question of fact. It is fundamental that it is not sufficient for an appellant merely to show “discrepancies” or “inadequacies” in the evidence or to show that the evidence is “tainted” or “otherwise lacks probative force”. It is necessary to demonstrate that such features appear in the evidence “in such a way as to lead the court of criminal appeal 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”.

[18] An appellant who contends that the verdict of the jury was unreasonable or that it was unsupported by the evidence must identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduced the probative value of the evidence in such a way that the appellate court ought 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. The mere identification of weaknesses in the prosecution case is not enough to sustain the ground. As Brennan J said in M v The Queen, and as criminal practitioners and trial judges know very well, it is a sad but salutary experience of counsel for the defence that the prosecution’s “weak point” is often brushed aside dismissively by a jury satisfied of the honesty of the prosecution witness.”

36. [36]
    In my view, when the evidence of the complainant as to the actual offending and the preliminary complaint evidence is considered, there is not a significant possibility that an innocent person has been convicted.  Prior to the complainant being interviewed by police, the nature of the enquiry had not been disclosed to him.  The allegations made by the complainant and how they evolved in the course of the police interview are set out in detail above.  The allegations were volunteered by the complainant.  They were not elicited by leading questions.  The complainant refers to the matter as being “very private” and “kind of gross”.  He refers to his father’s instructions to keep the conduct secret.  He expresses concern to police as to how his father will react.  He believes that his father will “go ballistic”.  As to the complainant’s evidence that his father told him that he would chop his neck off if he told anybody, the complainant accepted that his father did not use those words.  The complainant, however, sought to convey that something “super bad” would happen if he revealed the conduct.
37. [37]
    There are also other aspects of the complainant’s evidence that support this being a lived experience.  Apart from the complainant’s description of ejaculate, he also describes anal penetration as feeling like “poo was being pushed back up his backside”.  He described penetration as hurting when his father put it in “too far”.  The complainant’s reference to the “little bottle” which smells exactly like the drippy stuff permitted the jury to reason that some lubricant was used.  Similarly, the complainant’s description of sucking his father’s penis and it going so far down that it “touched my lungs” is also indicative of a recollection of a lived event.
38. [38]
    The preliminary complaint evidence is also significant.  In circumstances where the complainant was showing the other boy his bottom and touching the other boy’s penis, the complainant described the appellant doing similar acts to him.  The jury were directed that the boy’s evidence could be used as it relates to the complainant’s credibility.  The respondent correctly submits that this evidence was compelling where it originated in a game of ‘truth or dare’ during which there was sexual contact between the complainant and the boy.
39. [39]
    While it must be accepted that there are inconsistencies and weaknesses in the complainant’s account, they are not such as to reduce the probative value of the complainant’s evidence in such a way that this Court ought 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.
40. [40]
    Ground 1 fails.

Ground 2: The directions warning the jury about the specific features of the case which affected the complainant’s credibility and reliability were inadequate.

41. [41]
    Her Honour gave the following Robinson direction:

“You will need to scrutinise the evidence of…the complainant, with great care before you could arrive at a conclusion of guilt.  This is because of the following circumstances: firstly, the age of the complainant at the time of the alleged conduct, secondly, the difference between the accounts the complainant has given.  The different accounts that you’ve heard from [the complainant] are that he admitted in cross-examination he told his mother he made it up because he wanted to see what would happen but his evidence was that it was a lie that he told his mother, that he admitted in cross-examination that he told his mother on the morning that he was to go to see the doctor for the physical examination that what he told the police was a lie, that he told the police in his interview with them that these things had happened when he was asleep – the police officer asked him if he was awake or asleep, and he said he was asleep.

Further, he told the police that it happens every time he goes to his dad’s at night.  He said in cross-examination that these events happened when he was awake, and that they happened during the day.  And he also told his mother that they happened on the couch when [his sister] was there watching television.  There is also the very generalised and global nature of the allegations which [the complainant] makes without giving any specific information about particular times or places when one or more of these alleged acts occurred.  It’s difficult for [the complainant’s] allegations to be tested with any specificity when this type of generalised evidence is given.  You should only act on the evidence if, after considering it with the warning I’ve just given you in mind and all the other evidence in the trial, you’re convinced of its truth and accuracy.”

42. [42]
    Prior to giving this direction, her Honour had discussed its content with defence counsel.  It is apparent from this exchange that her Honour incorporated into the direction each of the matters raised by defence counsel.  In these circumstances it is unsurprising that no re-direction was sought.  The fact that no re-direction was sought does not relieve this Court from determining whether the alleged inadequacy of the Robinson direction resulted in a miscarriage of justice.
43. [43]
    The appellant submits that the direction was inadequate in that it failed to identify the following four circumstances:

    1. (a)
       the timing of the last event “two nights ago” being impossible in the light of the mother’s unchallenged evidence;
    2. (b)
       the complainant’s history of fabrication, particularly concerning the appellant pulling his pants down to smack him, threatening to chop his head off and showing a video to him in circumstances where his brain would flip from good to bad;
    3. (c)
       his lies, across a range of topics, to people in positions of authority; and
    4. (d)
       the complainant’s mental health issues.
44. [44]
    The respondent submits however, that each of these matters were well within the ordinary experience of the jury to assess.  For example, in relation to the offending occurring “two nights ago” in the midweek, the respondent submits that this simply could not be true in light of the mother’s evidence.  Accordingly, the respondent asserts that where the evidence had such clarity of contradiction, it did not require the full weight of the judicial direction to ensure the jury understood its effect, particularly where defence counsel addressed on the contradiction.
45. [45]
    The adequacy of the Robinson direction given by her Honour is to be considered in the particular circumstances of the trial.  The central issue at trial was the credibility and reliability of the complainant’s account in relation to the offending.  In her opening remarks to the jury, defence counsel highlighted the complainant’s own evidence that sometimes his brain would make him say things that were not true, that he was good at making up stories and he had a good imagination.  Defence counsel also highlighted the complainant’s mental health history and the inconsistencies in his evidence as to whether the offending occurred at night when he was asleep or when he was awake.  From the very outset of the trial, the jury were made aware of matters affecting the credibility and reliability of the complainant.  A number of the differences between the complainant’s accounts were identified by her Honour in the direction.  Her Honour instructed the jury that they had to keep the warning in mind as well as “all the other evidence in the trial”.
46. [46]
    Her Honour reminded the jury of the evidence of the complainant including further inconsistencies in considerable detail and not in the context of summarising the rival contentions.  In her Honour’s summary of the complainant’s evidence, each of the circumstances identified by the appellant were covered.  As to (a), the timing of the last event being “two nights ago”, her Honour referred both to the complainant’s evidence and the mother’s evidence.  According to the mother, two nights before the complainant’s interview with police, the complainant had been in her care.  This inconsistency in the complainant’s evidence would have been apparent to the jury and there was no need for it to be highlighted as a particular inconsistency for the purposes of a Robinson direction.
47. [47]
    As to (b), which includes the complainant’s history of fabrication, her Honour in summarising the complainant’s evidence, identified that the complainant accepted that he did not have a good memory but he did have a good imagination.  He accepted that he sometimes told stories to people that were not true about other people.  The complainant accepted that what he had told police about his father pulling his pants down and smacking him on the bottom was untrue.  He also accepted that his father did not say the words “he would chop his neck off” and that this was “something which his brain had just made up, like a saying” … “it was something that he made up about what his Dad had said”.
48. [48]
    As to (c), concerning the complainant’s lies across a range of topics, her Honour dealt with these lies in detail in her summary of the complainant’s evidence.  Her Honour referred to the complainant agreeing that he used to make up stories at school so he would not get into trouble.  One of those stories involved a lady at after school care choking him in circumstances where this did not happen.  Her Honour referred to the complainant not remembering telling his mother, after he had been interviewed by the police, that his father did things to him on the couch while his sister was watching television.  The complainant accepted that, in fact, this had never happened.  Her Honour also referred to the manipulative behaviour of the complainant.
49. [49]
    As to (d), the complainant’s mental health issues, her Honour referred to the fact that the complainant had been taken to a psychologist and psychiatrist at the age of five.  The behaviours observed by the mother in the complainant included him lying and cheating.  The mother was consistently called to the school because of the complainant’s bad behaviour which included giving ultimatums to teachers, running away, biting teachers and on one occasion throwing a knife at a teacher.
50. [50]
    Each of the matters identified in (a) – (d) must have been plain to the jury and did not have to be specifically listed in the Robinson warning: R v Tichowitsch [2007] 2 Qd R 462 at [69]–[73]; R v Reynolds [2015] QCA 111 at [39]; R v SCS [2017] QCA 78  at [49].
51. [51]
    Ground 2 fails.

Ground Three: The learned trial judge misdirected the jury on the elements of the offence.

1. (a)
   The circumstances of aggravation should not have been charged.

52. [52]
    The count of maintaining an unlawful sexual relationship pursuant to s 229B(1) of the Criminal Code is set out at [4] above.  Paragraphs 2 and 3 of the count allege circumstances of aggravation that have not existed since the 2003 amendments to s 229B.
53. [53]
    Prior to these amendments s 229B relevantly provided:

“(1) Any adult who maintains an unlawful relationship of a sexual nature with a child under the prescribed age is guilty of a crime and is liable to imprisonment for 14 years.

3. (2)
   A person shall not be convicted of the offence defined in sub-section (1) unless it is shown that the accused person, as an adult, has, during the period in which it is alleged that he or she maintained the relationship in issue with a child, done an act defined to constitute an offence of a sexual nature in relation to the child, other than an offence defined in section 210(1)(e) or (f), on 3 or more occasions and evidence of the doing of any such act shall be admissible and probative of the maintenance of the relationship notwithstanding that the evidence does not disclose the dates or the exact circumstances of those occasions.

3. (3)
   If in the course of the relationship of a sexual nature the offender has committed an offence of a sexual nature for which the offender is liable to imprisonment for 14 years or more, the offender is liable in respect of maintaining the relationship to imprisonment for life”.

54. [54]
    An offence of a sexual nature referred to in s 229B(3) included indecent treatment of a child under 16 pursuant to s 210 of the Criminal Code and rape pursuant to s 349 of the Criminal Code.  Section 210(3) provides that if the child is under the age of 12 years, the offender is guilty of a crime, and is liable to imprisonment for 20 years.  Section 210(4) provides that if the child is, to the knowledge of the offender, his or her lineal descendant or if the offender is the guardian of the child or, for the time being, has the child under his or her care, the offender is guilty of a crime, and is liable to imprisonment for 20 years.  Rape carries imprisonment for life.  It follows that for the purposes of s 229B(3), prior to the 2003 amendments, the indecent treatment of a child in circumstances stated in s 210(3) and (4) and the rape of a child constituted offences of a sexual nature for which the offender was liable to imprisonment for 14 years or more.  In such circumstances of aggravation the offender was liable, pursuant to s 229B(3), to life imprisonment in respect of maintaining a sexual relationship with a child rather than to imprisonment for 14 years.
55. [55]
    Paragraphs 2 and 3 of the count therefore reflect circumstances of aggravation contemplated by s 229B(3) prior to the 2003 amendments.
56. [56]
    Section 229(B) was amended by s 18 of the Sexual Offences (Protection of Children) Amendment Act 2003 (Qld).  Section 18 omitted the previous s 229B and replaced it with the new s 229B which now relevantly provides:

“(1) Any adult who maintains an unlawful sexual relationship with a child under the age of 16 years commits a crime.

Maximum penalty – life imprisonment.

3. (2)
   An unlawful sexual relationship is a relationship that involves more than 1 unlawful sexual act over any period. 

3. (3)
   For an adult to be convicted of the offence of maintaining an unlawful sexual relationship with a child, all the members of the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship with the child involving unlawful sexual acts existed.

3. (4)
   However, in relation to the unlawful sexual acts involved in an unlawful sexual relationship –

1. (a)
   the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and

2. (b)
   the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence; and …

…

(6A) The Penalties and Sentences Act 1992, section 161Q states a circumstance of aggravation for the crime.”

Section 229B(10) defines an offence of a sexual nature as including offences under s 210 and s 349 of the Criminal Code.

57. [57]
    The 2003 amendments increased the maximum penalty for maintaining a sexual relationship with a child from 14 years to life imprisonment.  In such circumstances, after the 2003 amendment there was no further requirement for the prosecution to charge any circumstances of aggravation stated in the repealed s 229B(3).  The only circumstance of aggravation under the present s 229B is as provided by s 229B(6A).  Section 161Q of the Penalties and Sentences Act 1992 (Qld) states the circumstance of aggravation for an offence of maintaining an unlawful sexual relationship with a child, namely where the offender, at the time the offence was committed, was a participant in a criminal organisation and knew (or ought reasonably to have known), for example, that the offence was being committed at the direction of a criminal organisation.  This circumstance of aggravation is reflected in the present Form 131 of the Criminal Practice Rules 1999.
58. [58]
    The 2003 amendments also removed the requirement in s 229B(2) for the prosecution to prove that the offender had done an act defined to constitute an offence of a sexual nature in relation to the child on 3 or more occasions.  Section 229B(2) now provides that an unlawful sexual relationship is a relationship that involves more than 1 unlawful sexual act over any period.
59. [59]
    Section 1 of the Criminal Code defines “circumstance of aggravation” to mean any circumstance by reason whereof an offender is liable to a greater punishment than that to which the offender would be liable if the offence were committed without the existence of that circumstance.  If the prosecution intends to rely upon any circumstance of aggravation, it must be charged in the indictment: s 564(2) of the Criminal Code.
60. [60]
    Paragraph 2 and 3 of the count were not circumstances of aggravation because the appellant was not liable to any greater punishment than the maximum sentence as, subsequent to the 2003 amendments, the maximum penalty for an offence under s 229B is life imprisonment.  There was therefore no requirement for the prosecution, pursuant to s 564(2), to charge any circumstances of aggravation.  Not only was it not a requirement to charge these circumstances of aggravation, their inclusion was as a matter of law wrong because none of the circumstances fell within the definition of “circumstance of aggravation” in s 1 of the Criminal Code.  Further, as paragraph 1 of the count correctly stated the elements of the offence under s 229B(1) it was not necessary for the prosecution to set forth in the indictment any particulars as to anything or any other matter which did not need to be proved: s 565(e) of the Criminal Code.

(b) The course of the trial.

61. [61]
    On the first day of trial and prior to the empanelment of the jury, her Honour raised with the Crown prosecutor the circumstances of aggravation in the count.  Her Honour considered that the circumstances of aggravation should be “articulated” when the appellant was arraigned.  The Crown prosecutor submitted that the appellant should be arraigned upon the substantive wording of the charge as well as the circumstances of aggravation.  The appellant was arraigned on the count of maintaining an unlawful sexual relationship with a child under 16 years with circumstances of aggravation. 
62. [62]
    In her opening remarks to the jury, the learned trial judge, in explaining the charge, made no mention of the circumstances of aggravation:

“Now, I want to explain the charge that the defendant faces.  As you’ve heard, it’s alleged by the Crown that [the appellant] committed the offence of maintaining a sexual relationship with a child.  The defendant has pleaded not guilty to that charge, and you’ve been given the responsibility of deciding or judging whether he is guilty or not guilty.  You do that by returning a verdict after the trial.  Your final verdict will be your judgment as to whether the defendant is guilty or not guilty.  Now, criminal charges have elements or parts.  To find the defendant guilty of a charge, the Crown must prove every element of that offence or charge beyond a reasonable doubt.

For the count of maintaining a sexual relationship with a child, the prosecution must prove that the defendant maintained an unlawful relationship of a sexual nature with a child under the age of 16 years.  The defendant was an adult – that is, a person who is over 18 years of age.  The complainant was, at the time, a child under the age of 16 years.  An unlawful sexual relationship is a relationship which involves more than one unlawful sexual act over any period.  And an unlawful sexual act is an act that constitutes an offence of a sexual nature which is not authorised, justified or excused by law.  Now, all of you must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship with a child involving unlawful sexual acts existed.  It’s not necessary that you all be satisfied about the same unlawful sexual acts.  In this case, the fact that the defendant is an adult, or the complainant child was under 16, or under 12 and a lineal descendant are not likely to be issues of dispute in the trial.

In this case, the critical issue for you will be whether there was a sexual relationship between the defendant and the complainant.”

63. [63]
    Neither the Crown Prosecutor nor defence counsel in their opening remarks to the jury referred to the circumstances of aggravation except for the fact that the appellant was the father of the complainant who at the relevant time was under 12 years of age.  These facts were not in dispute at trial and the age of both the appellant and the complainant were the subject of admissions.
64. [64]
    The Crown tendered as Exhibit 1 the particulars to the count:

“These particulars are to be read in conjunction with indictment number 60-2019;

Count 1

The defendant maintained a sexual relationship with the complainant which involved all or some of the following acts:

1. Procuring the complainant to perform oral sex on the defendant; and/or
2. Penetrating the complainant’s anus with the defendant’s penis; and/or
3. Procuring the complainant to touch/rub the defendant’s penis; and/or
4. The defendant touching/rubbing the complainant’s penis with his hand; and/or
5. The defendant performing oral sex on the complainant; and/or
6. Procuring the complainant to lick/suck the defendant’s nipples.”

65. [65]
    On 16 September 2021, her Honour provided a draft information sheet for the jury to the Crown prosecutor and defence counsel for discussion:  MFI “G”.  Her Honour considered that the jury needed to be directed in relation to the elements of both indecent treatment of a child under 16 and rape.
66. [66]
    In his final address to the jury, the Crown prosecutor reiterated that the central question for the jury to consider was whether they were satisfied beyond reasonable doubt that the sexual acts alleged by the complainant occurred.  The Crown prosecutor referred to the fact that there was no controversy that the complainant was the biological son of the appellant and that the complainant was at the relevant time under 12 years of age.  Apart from these non-contested issues, no reference was made by either the Crown prosecutor or defence counsel to the circumstances of aggravation except in the context of the particulars of the unlawful sexual acts which included allegations of both indecent dealing and rape.
67. [67]
    Her Honour commenced her summing up by referring to the charge including the circumstances of aggravation.  In directing the jury as to the relevant elements, her Honour had distributed the information sheet which contained the wording of the count including paragraphs 2 and 3 which alleged circumstances of aggravation.  The information sheet also detailed the particulars which had been tendered as exhibit 1.  Her Honour proceeded to direct the jury in relation to the elements of the offence of maintaining an unlawful sexual relationship with a child under 16.  Her Honour gave orthodox directions in accordance with the Queensland Supreme and District Court’s Criminal Benchbook without any further mention of the circumstances of aggravation.  This included the following direction:

“The Crown must prove 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 incidents.  Finally, all of you must be satisfied beyond reasonable doubt that the evidence establishes than 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.”

68. [68]
    Her Honour had previously instructed the jury that the prosecution was required to prove beyond reasonable doubt every element of the offence with which the appellant had been charged.  At no stage did her Honour instruct the jury that the prosecution had to prove beyond reasonable doubt the circumstances of aggravation including that in the course of the relationship the appellant raped the complainant.  In accordance with the directions given by her Honour, while the jury had to be satisfied beyond reasonable doubt of the existence of an unlawful sexual relationship involving unlawful sexual acts, it was not necessary for all of them to be satisfied (beyond reasonable doubt) as to the same unlawful sexual acts.
69. [69]
    When the jury returned to deliver their verdict, the Associate asked “Do you find the accused … guilty or not guilty of count 1, maintaining a sexual relationship with a child?”  The speaker replied “Guilty”.  When asked by the Associate “So says your speaker, so say you all?”, the jury replied “Yes”.  After the allocutus had been administered, the following exchange occurred between the Crown prosecutor and her Honour:

“Mr Finch:  I am sorry, your Honour to interrupt.  Before your Honour excuses the jury, the – when the verdict was taken, it was taken in relation to count 1, maintaining.

Her Honour:  Yes.

Mr Finch:  There are two additional circumstances.  There is a substantive charge and the two circumstances.  It may be that the verdict should be taken again in relation to the substantive charge and each of the circumstances.

Her Honour:  All right.  So you would like the verdict taken, rather than with the short form of the charge, but with the whole of the charge?

Mr Finch:  That is the consensus at the [B]ar table.

Her Honour:  Yes.  All right.  There is no difficulty about that.”

70. [70]
    The Associate then took the following verdict:

“Associate:  Members of the jury, are you agreed upon your verdicts?

Speaker:  Yes.

Jury:  Yes.

Associate:  Do you find the accused … guilty or not guilty of count 1, maintaining a sexual relationship with a child that between the 19^th day of May 2014 and the 5^th day of October 2017 at [suburb] in the State of Queensland, [the appellant], being an adult, maintained an unlawful sexual relationship with [the complainant], a child under 16 years, and in the course of that relationship, [the appellant] indecently dealt with [the complainant], a child under 16 under 12, his lineal descendant under care, and further, that during the course of the relationship, [the appellant] raped [the complainant].

Speaker:  Guilty.

Associate:  Guilty your Honour.  So says your speaker, so say you all?

Jury:  Yes.”

71. [71]
    As to the first verdict, and in accordance with her Honour’s directions, while the jury had to be unanimous that the Crown had established beyond reasonable doubt that the appellant maintained an unlawful sexual relationship with the complainant which involved unlawful sexual acts, it was not necessary for all of them to be satisfied beyond reasonable doubt about the same unlawful sexual acts.  That is, for the guilty verdict on the maintaining charge, it was not necessary that all members of the jury had to be satisfied beyond reasonable doubt that the appellant raped the complainant.  The subsequent verdict suggests, however, that the jury was unanimous that the prosecution had established beyond reasonable doubt that the appellant had raped the complainant.  This was in circumstances where no directions were given to the jury concerning the circumstances of aggravation.

(c) The competing submissions.

72. [72]
    The appellant submits that the trial judge, by failing to direct the jury in relation to the alleged circumstances of aggravation, created the impression that they did not all have to agree on their existence.  The appellant accepts that the prosecution was not required to charge the circumstances of aggravation.  However, having done so, the jury needed to be directed appropriately about them.  According to the appellant, a miscarriage of justice has occurred because:

“In the result, the appellant was convicted of a serious criminal offence following a trial at which the prosecution left to the jury a charge that the law no longer provided.  That irregularity led to directions on it that were wrong”.^[6]

73. [73]
    The respondent accepts that the alleged circumstances of aggravation were not only unnecessary but were also not known at law.  The impugned allegations could not constitute circumstances of aggravation, as defined, nor were they elements of the offence.  The respondent therefore submits that the words in paragraphs 2 and 3 of the count are surplusage.  In those circumstances, there was no need for any further direction from the trial judge.

(d) Did the learned trial judge’s failure to direct the jury in relation to the alleged circumstances of aggravation result in a miscarriage of justice?

74. [74]
    In Hofer v The Queen (2021) 95 ALJR 937 at [41], Kiefel CJ, Keane and Gleeson JJ observed:

“A miscarriage of justice to which s 6(1) of the Criminal Appeal Act refers includes any departure from a trial according to law to the prejudice of the accused.  This accords with the long tradition of criminal law that a person is entitled to a trial where rules of procedure and evidence are strictly followed.”

75. [75]
    In R v De Silva (2007) 176 A Crim R 238 at [28] Jerrard JA stated:

“It is only when a direction not asked for should have been given, that the possibility of a miscarriage of justice arises.  It is then for the appellant to show that the direction both should have been given, and that it is reasonably possible that the failure to so direct the jury may have affected the verdict.”

76. [76]
    To similar effect is the observation of Sofronoff P in R v ABD [2019] QCA 72 at [3]:

“A miscarriage will have occurred if the direction should have been given and it is reasonably possible that the failure to direct may have affected the verdict.”

77. [77]
    For the following reasons I am of the view that no miscarriage of justice has occurred.  First, the allegations in paragraphs 2 and 3 of the count did not constitute elements of the charged offence of maintaining an unlawful sexual relationship with a child under 16.  Nor did the allegations constitute circumstances of aggravation for the charged offence.  Even if they did, they would still not have constituted elements of the offence nor separate offences.  As observed by Asche CJ in Go v R (1990) 73 NTR 1 at 12:

“A circumstance of aggravation is not a separate offence:  Buckle v Josephs (1983) 47 ALR 787; Ross v R (1979) 25 ALR 137; 141 CLR 432 at 439 (per Gibbs J); R v De Simoni (1981) 35 ALR 265; 147 CLR 383 at 386 (per Wilson J).  If proved, it increases the maximum penalty…”.

78. [78]
    Secondly, as the allegations in paragraphs 2 and 3 of the count did not constitute circumstances of aggravation, there was no requirement for them to be charged in the indictment:  s 564(2) of the Criminal Code.  To the extent that the allegations were particulars of the offence of maintaining an unlawful sexual relationship with a child, it was not necessary for these particulars to be set forth in the indictment: s 565(e) of the Criminal Code.  As the allegations did not constitute either elements of the offence nor circumstances of aggravation, the words in paragraphs 2 and 3 of the count may be correctly viewed as surplusage.
79. [79]
    Thirdly, it is not correct, as submitted by the appellant, that her Honour failed to direct the jury in relation to the allegations in paragraphs 2 and 3 of the count.  Her Honour, in effect, treated the allegations as particulars of the offence.  The jury information sheet contained paragraphs 1, 2 and 3 of the count as well as the particulars constituting exhibit 1.  Her Honour identified in the summing up, by reference to these particulars, that the offences of a sexual nature to be considered were indecent dealing with a child under 16 and rape.  The elements of each of these offences were explained to the jury.  These directions are contemplated by the Queensland Supreme and District Court’s Criminal Benchbook No. 157.2 where the trial judge is to give an explanation of what constitutes an unlawful sexual relationship as being a relationship that involves more than one unlawful sexual act over any period.  In explaining what constitutes an unlawful sexual act a trial judge should identify the offences of a sexual nature upon which the prosecution relies, explaining in respect of each what the jury must find in order to be satisfied that such an offence occurred.  This is what her Honour did in the present case.  As to the allegations in paragraph 2 of the count – that the complainant was under 12 and a lineal descendant of the appellant – these matters were either the subject of admissions or not in issue at trial.  Her Honour directed the jury as to the age of the complainant in addressing the element that the prosecution must prove that the complainant was at the time a child under the age of 16 years.
80. [80]
    Fourthly, the central issue at trial was whether the jury was satisfied beyond reasonable doubt that the sexual acts alleged by the complainant occurred.  Neither the Crown prosecutor nor defence counsel in their closing addresses referred to the allegations in paragraphs 2 and 3 of the count except in the context of the particulars of the unlawful sexual acts which included allegations of both indecent dealing and rape.  In these circumstances it is unsurprising that neither the Crown prosecutor nor defence counsel sought any further directions from her Honour in relation to the allegations contained in paragraphs 2 and 3 of the count.
81. [81]
    Fifthly, in relation to the jury returning a verdict to the count which included the alleged circumstances of aggravation, it is difficult to ascertain how this verdict, in the circumstances of the present case, could have operated to the prejudice of the appellant.  The jury’s verdict in relation to the charge of maintaining together with the alleged circumstances of aggravation suggests the jury were unanimously satisfied beyond reasonable doubt that the appellant had raped the complainant.  Such unanimity was not required for the jury to find the appellant guilty of the charge of maintaining alone.

Disposition

82. [82]
    The appeal should be dismissed.