R v Knight[2022] QCA 31

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  I agree with the reasons for judgment of Morrison JA and the orders proposed by his Honour.
2. [2]
   MORRISON JA:  The appellant was charged with 13 counts of sexual assault in relation to a male victim.  The appellant was a friend of the complainant, but about 20 years older.  The offending commenced when the complainant was 10 years old and continued until he was 17 and a half.  He was 20 at the trial.
3. [3]
   Counts 1-4 were all counts of indecent dealing with a child under 12 years, and who was under the appellant’s care.  These counts generally concerned touching the complainant’s penis, both outside and inside his clothing, and one occasion of oral sex.
4. [4]
   Count 5 was a count of unlawful and indecently dealing with a child under 16 years.  That concerned touching the complainant’s groin outside his clothing.
5. [5]
   Counts 6-9 and counts 11-13 were all unlawful and indecent assault.^[1]  They concerned touching the complainant’s penis,^[2] oral sex,^[3] and touching the buttocks.^[4]
6. [6]
   Count 10 was the sole count of rape.
7. [7]
   After a trial the appellant was convicted on counts 1, 2, 3, 5, 6, 8, 9, 10, 11 and 13.  During the course of the trial, counts 7 and 12 were the subject of a nolle prosequi.  A not guilty verdict was returned on count 4.
8. [8]
   The appellant challenges his convictions on a number of grounds.  Ground 1 occupied most time on the appeal.  It is in these terms:

The trial miscarried from cumulative errors that in combination produced an unfair trial such that the trial miscarried in:

A. The Crown's general departure from the prosecution opening and particulars relied on at the trial.

B. The trial Judge improperly allowing amendment of the particulars for Count 1.

C. The trial Judge improperly allowing amendment of the indictment and the particulars for Count 10.

D. The trial Judge improperly encouraging an admission concerning Count 10 and thereafter failed to properly direct the jury as to the use and purpose of that admission.

E. The trial Judge failed to have regard to, or consider, a directed verdict on Counts 7 and 12.

F. The trial Judge failed to properly direct the jury on Counts 7 and 12.

G. The trial judge failure to direct the jury as to the dates of the offending, and/ or direct acquittals on Counts 1 to 4.

9. [9]
   Grounds 2 and 3 are:

2: the verdicts were unreasonable; and

3: the verdict on Count 3 was inconsistent with that on Count 4 and the other counts.

10. [10]
    Some general context for count 10 will assist.  On one occasion the appellant asked the complainant to do some work for him.  They drove to the work site.  Whilst parked in the HiLux ute the appellant touched the complainant’s penis.^[5]  That night the appellant asked the complainant to accompany him so he could give him the money for the work.  They drove to a residence owned by the appellant’s parents.  There the appellant touched the complainant’s penis,^[6] performed oral sex on him,^[7] and then penetrated his anus.^[8]
11. [11]
    As particularised count 10 involved the insertion of the appellant’s penis.  At trial the complainant said that the appellant used a finger to penetrate his anus.

Count 10

12. [12]
    The indictment specified count 10 in these terms:

“That on a date unknown between the first day of March, 2018 and the eighth day of April, 2018 at Bowen in the State of Queensland, [the appellant] raped [the complainant].”

13. [13]
    The marginal notes that accompanied count 10 read as follows:

“Count 10

Section 349(1) & (2)(a)

Criminal Code

Form 195”

14. [14]
    On day one of the trial, when the appellant was arraigned on count 10 it was in these terms:^[9]

“You further stand charged that on a date unknown between the 1^st day of March 2018 and the 8^th day of April 2018 at Bowen in the State of Queensland you raped [the complainant]. [Appellant], how do you plead: guilty or not guilty?”

15. [15]
    When the Crown prosecutor opened the case he did so, relevantly for count 10, in two ways.  The first was by tendering the particulars.^[10]  The particulars of count 10 were, relevantly, that the appellant “penetrated the complainant’s anus with his penis”.^[11]
16. [16]
    Secondly, when referring to count 10, the prosecutor opened that count 10 was on the same occasion as counts 8 and 9, taking place at the appellant’s house.  Count 10 involved “forcing his penis inside [the complainant’s] anus and that’s count 10 which is anal rape because our law defines rape to include penetration of someone’s anus with a penis.”.^[12]
17. [17]
    There was no opening address by counsel for the appellant.

The complainant’s evidence on count 10

18. [18]
    When the complainant came to that part of his evidence dealing with counts 8, 9 and 10, which all took place at the house of the appellant’s parents, he gave evidence which included these components:

    1. (a)
       identifying where they were in the house and their respective positions;
    2. (b)
       that the appellant pulled the complainant’s shorts down;
    3. (c)
       that the complainant was sitting on a chair and, at times, standing beside the chair;
    4. (d)
       the details of counts 8 and 9;
    5. (e)
       identified, by reference to photographs, a number of features of the house relevant to counts 8, 9 and 10; and
    6. (f)
       that the appellant opened a pocket in his bag and received some “lube” which he put on his finger.
19. [19]
    As to the details of count 10 the complainant said the following:

    1. (a)
       the appellant “tried to stick his finger in the middle of my bum cheeks, and that’s where I’ve turned around and said no”;^[13]
    2. (b)
       that the complainant was standing up by that time;^[14]
    3. (c)
       with relevance to the lube, “that’s where he put it over his hand to stick his finger … between my cheeks, and that’s where I’ve said no”;^[15] and
    4. (d)
       when asked what happened after the appellant tried to put his finger in, that they discussed the fact that the complainant would have to go home soon, and eventually he was dropped home.
20. [20]
    At that point the following exchange occurred in the complainant’s evidence in chief:^[16]

“You’ve just said – and I just want to clarify this – that he’s tried to put his finger in between your buttocks?---Yes.

How many fingers are you talking about?---One.

And how far did he go?---He got the tip, so fingernail width. And that’s where I’ve said no.

And the fingernail tip, where did that go?---Into, yeah, my butt cheeks into my – yeah.

I just want to clarify how far it went?---So fingernail width – centimetres – yeah – yeah, I’m not really good with my maths, or that sort of stuff. So end of the – yeah, end of the finger. So before the first knuckle.

So are you talking about though your finger penetrating just the outside of your cheeks or further than that?---No, into – into my – into my bum to back out, and that’s where I’ve said no.

All right. Well, when you say “Bum,” what do you mean? Well, what’s another word for what you’re describing?---Can I say arsehole, does that work?

If that’s what you’re describing, then yes?---Yeah.”

21. [21]
    The prosecutor returned to that passage later in evidence in chief,^[17] and having rehearsed those details led the following evidence:^[18]

“And when you say he’s put his finger up your bum, is that something you saw or only something you could feel?---I felt.

And you’re sure that it was his finger?---Yes.

Now, did anything else happen on that occasion at his house?---Not that I recall, no.”

22. [22]
    As is apparent from the opening and the particulars, the complainant’s evidence in chief did not come up to proof of anal rape with a penis.  Instead, his evidence was of anal rape with a finger.
23. [23]
    Cross-examination commenced by targeting what the complainant had said about count 10:^[19]

“MR PACK: … Out of all the allegations that you’ve raised against my client, you’d accept, wouldn’t you, that the most serious of all them is that my client has, in effect, put his finger into you anus whilst you were at his residence?---Yes.

In effect, he’s raped you by doing that – by putting his finger into your bottom; that’s right, isn’t it?---Yes.

And you’d accept, wouldn’t you, that you’ve now spoken to the police on three occasions?---Yes.

You’ve provided three separate statements in this matter?---Yes.

And not once, in any of statements, do you make that allegation, do you?---Nope.”

24. [24]
    Later in cross-examination count 10 was the subject of some further questions:^[20]

“…as I was saying, this is the incident that has occurred, on your evidence, later that evening at my client’s residence – you say that my client digital [sic] raped you by putting his finger into your bottom; that’s correct?---Yes.

What I’m going to suggest to you that that is an allegation that was never brought up with Ms D – your girlfriend – at all?---Okay. Okay.

Do you agree with that?---Not that I recall.

Right. And also with your mum, C, as well; you never told her that either?---Not that I recall, no. I’m pretty sure I did put it in the statement.

Yes. Well, I suggest to you on that point that you didn’t; you never actually make any mention of being raped in the manner you described with a finger in your statement at all?---Not that I see, as I haven’t properly had a skim and scan as I put the statement in a few years ago and now I’m just starting to resurrect up all this again.

Yes. But you’ve had plenty of opportunity to raise that allegation ---?---To be honest – to be honest, I don’t really like to think about it or anything like that because it stresses me out, and that, and gives me anxiety.

Sure. But you first spoke to police on the 2^nd of February 2019; that’s the … this is your statement that you’ve got in front of you?---Yes.

And then you didn’t provide another statement … until the following year. Until the 30^th of January 2020. Are you willing to accept that?---Yes.

As I – I don’t really like telling people – yeah.

And finally, your last statement on the 27^th of March 2020. So three statements in total. Do you agree with that?---Yes.

And not, in any of those statements, do you make that allegation. Do you ---?---I am not too sure ---  --- that you were – that my client’s - - - as I don’t have it in front of me or anything.”

25. [25]
    There are several matters to note about that last passage.  First, the complainant was reminded that his evidence was of digital rape “by putting his finger into your bottom”.  Secondly, it was then put that that was an allegation that was not brought up with the complainant’s girlfriend or her mother.  To each of those the answer was “not that I recall”.  However, the complainant then added “I’m pretty sure I did put it in the statement”.^[21]  Thirdly, the proposition then put to the complainant was that he had never actually made “any mention of being raped in the manner you described with a finger in your statement at all”.^[22]  Fourthly, the complainant accepted that proposition saying “not that I see”, but qualified it by saying he hadn’t properly looked at the statement in some time.  Fifthly, the three statements were identified by date and it was put to the complainant that in none of those statements did he make the allegation of digital rape.  The response was that the complainant was not too sure “as I don’t have it in front of me or anything”.
26. [26]
    The significance of that passage is that the complainant had never made an allegation of “being raped in the manner you described with a finger”.  The “manner you described” was, amongst other things, digital rape at the appellant’s residence on a particular night.  As will appear later, it became evident that in a previous statement the complainant had made an allegation of penile rape on that occasion, but not digital rape.
27. [27]
    Cross-examination on count 10 continued shortly thereafter.  In the first passage^[23] the point of the cross-examination was to establish, as the complainant agreed, that the first time he had said “no” was as the appellant put his finger into the complainant’s anus.  Further, that having said “no”, the appellant immediately stopped.
28. [28]
    The next passage^[24] was concerned with putting to the complainant that “at no stage did my client sexually assault you in any manner or form at his residence”, a proposition with which the complainant disagreed.  The second was to put that the complainant’s evidence was an allegation of anal rape with his finger, extracting the answer “Yeah, fingernail width, yes”.
29. [29]
    Count 10 was visited once again, at the end of the cross examination.^[25]  The purpose of the questioning was to establish that at no stage did the complainant say “no” or disagree with what was going on.  The complainant explained that he was scared and didn’t know what to say.  The second purpose was to put, once again, that “during this particular incident” the appellant did not “sexually abuse you in any shape or form”.  That proposition was one with which the complainant disagreed.

Discussion - grounds 1C and 1D, amendment of indictment and particulars

30. [30]
    At the end of the first day, in the absence of the jury, the trial judge raised the fact that the complainant had not come up to proof on three counts, namely counts 7, 10 and 12.^[26]  Having pointed out that count 10 was particularised as a penile rape, and that the complainant had not come up to proof, the prosecutor sought leave to amend the particulars by deleting the word “penis” and substituting the word “finger”.^[27]  His Honour asked defence counsel if the amendment to the particulars would be opposed, pointing out that particulars were not constituent components of the indictment, and the amendment did not deprive defence counsel from making submissions to the jury as to the change.  Defence counsel announced that he wanted to take instructions on that and consider his position.^[28]  The trial judge pointed out that the charge on the indictment was “rape”, which could be constituted by both digital or penile rape.  Defence counsel proposed that he be given the time to take instructions from his instructing solicitor overnight and discuss the effect of counts 7 and 12 with his client, then deal with those issues the following morning.^[29]
31. [31]
    The trial judge adverted to the prospect that the Crown might simply enter a nolle prosequi in respect of counts 7 and 12.  That would then raise the question of what explanation his Honour had to give to the jury.
32. [32]
    Before the court adjourned that day, the trial judge returned to the issue of all three counts, pointing out to the prosecutor that he would need to take instructions as to what to do with each of counts 7 and 12, and that he should speak to defence counsel “about any application you wish to make in relation to count 10 to amend the particulars”.^[30]
33. [33]
    The trial judge then observed that he understood cross-examination of the complainant to be this effect, “… that the complainant provided three statements to the police, and in none of those statements did he allege any form of anal rape, whether that be penile or digital”.^[31]  The response from the prosecutor was that the complainant had alleged penile rape in one of his statements.  That was then identified by defence counsel as being the second statement, which was made about 12 months after the first.  As defence counsel observed, “He brought up the suggestion of a penile rape about 11 months, so to speak, since the first …”.^[32]
34. [34]
    The prosecutor then observed that what was put in cross-examination was that the complainant had never alleged, before today, digital penetration.^[33]
35. [35]
    The following exchange then occurred between the trial judge and defence counsel:^[34]

“HIS HONOUR: Well, in any event, one of the considerations in terms whether it be amending an indictment or amending particulars is whether there’s any prejudice towards to the defendant. And here I would have [thought], Mr Pack, that the defendant’s case is simply one that none of these acts happened and that was, obviously, what was put to the complainant.

MR PACK: That is so. So - - -

HIS HONOUR: So whether it’s a digital rape or a penile rape is neither here nor there.

MR PACK: Yes.

HIS HONOUR: The defendant’s case remains the same. That he did not do any of the acts alleged.

MR PACK: Yes.”

36. [36]
    The trial judge then made some preliminary observations about the absence of prejudice in the event that the indictment was amended, because the defendant’s case was a simple one, namely that none of the acts had ever occurred.^[35]  At that point, the matter was adjourned to the following day.
37. [37]
    The following morning, the Crown prosecutor handed up a document indicating that he intended to enter a nolle prosequi to counts 7 and 12.  Having referred to that, the trial judge asked a question of defence counsel, “I take it that course is not opposed by you, Mr Pack”.^[36]  Defence counsel, “that is so, your Honour”.^[37]
38. [38]
    The trial judge then identified what should be said to the jury, namely following a Benchbook direction telling the jury that those counts were no longer before them and had no relevance to their consideration of the case.  A direction in those terms was not opposed by either counsel.
39. [39]
    The prosecutor then sought leave to amend the marginal notes on the indictment, to delete the reference to s 349(2)(a) and replace it with a reference to s 349(2)(b).  This was a reference to the two component parts of s 349 of the Criminal Code (Qld) which relevantly provided:

“(1) Any person who rapes another person is guilty of a crime.

3. (2)
    A person rapes another person if—

1. (a)
    the person has carnal knowledge with or of the other person without the other person’s consent; or

2. (b)
    the person penetrates the … anus of the other person to any extent with … a part of the person’s body that is not a penis without the other person’s consent; …”

40. [40]
    No amendment was sought as to the reference to s 349(1).
41. [41]
    Defence counsel was asked if that application was opposed and he replied, “No, it’s not”.^[38]
42. [42]
    The trial judge gave some reasons for permitting that application:^[39]

“… noting that the purpose of the amendment, as was canvassed yesterday during submissions, the amendment I’m referring to is to count 10, and amending the section referred to in the column of count 10 from section 349, subsection (1) and subsection (2)(a), to what will then read section 349, subsection (1) and subsection (2)(b). Two (a) being a reference in 349, subsection (2), to carnal knowledge, which of course was the correct charge as it was particularised. Those particulars having been provided to the jury. The particulars being that the rape alleged in count 10 was a penetration of the complainant’s anus by the defendant’s penis. The complainant’s evidence did not come up to proof insofar as that particular is concerned. Instead, the complainant’s evidence is that the defendant penetrated his anus with his finger, which means that the proper charge is that which is prescribed under section 349, subsection (2), subsection (b).

The purpose of the amendment is simply to accord – to ensure that the – that count 10 aligns with the evidence given by the complainant. The amendment is sought prior to the close of the prosecution case. The case for the defendant is none of these acts occurred. The application to amend count 10 in the way described is not opposed by the defendant, as I’ve been informed by Mr Pack.

In those circumstances I’m satisfied there is no prejudice to the defendant if count 10 is to amend to properly align with the complainant’s allegation, namely, that the rape alleged in count 10 is a digital rape, as opposed to a penile rape. I will therefore grant leave to the Crown to amend count 10 accordingly.”

43. [43]
    Observing that the substance of the charge had not changed, the trial judge then asked defence counsel whether he required his client to be re-arraigned on count 10.  His Honour also observed that count 10 was “in identical terms”.  The only change that was made was to a sub-section referred to in the marginal note, and his Honour was right.
44. [44]
    Defence counsel responded that he did not need his client re-arraigned.
45. [45]
    Attention then focussed on the particulars to count 10.  Defence counsel was asked if the amendment to substitute the word “finger” for the word “penis” was opposed, and the response was, “No, it’s not, your Honour”.^[40]

Amendment in respect of count 10

46. [46]
    Amendment of an indictment is governed by s 572 of the Criminal Code 1899 (Qld).  It relevantly provides:

“572 Amendment of indictments

(1) If, on the trial of a person charged with an indictable offence, there appears to be a variance between the indictment and the evidence, or it appears that any words that ought to have been inserted in the indictment have been omitted, or any count that ought to have been included in the indictment has been omitted, or that any words that ought to have been omitted have been inserted, the court may, if it considers that the variance, omission, or insertion, is not material to the merits of the case, and that the accused person will not be prejudiced thereby in the person’s defence on the merits, order the indictment to be amended, so far as it is necessary, on such terms (if any) as to postponing the trial, and directing it to be had before the same jury or another jury, as the court may think reasonable.

…

3. (2)
    The indictment is thereupon to be amended in accordance with the order of the court.

3. (3)
    If the court is satisfied no injustice will be done by amending the indictment, the court may make the order at any time before, or at any stage of, the trial on the indictment, or after verdict.

3. (4)
    When an indictment has been amended, the trial is to proceed, at the appointed time, upon the amended indictment, and the same consequences ensue, in all respects and as to all persons, as if the indictment had been originally in its amended form.”

47. [47]
    As appears from s 572(1) there are a number of situations which can cause an amendment.  They are when there appears: (i) to be a variance between the indictment and the evidence; (ii) that any words that ought to have been inserted in the indictment have been omitted; (iii) that any count that ought to have been included in the indictment has been omitted: and (iv) that any words that ought to have been omitted have been inserted.
48. [48]
    In this case it was the variance between count 10 on the indictment and the evidence in respect of count 10 that led to the amendment.
49. [49]
    The power to amend under s 572(3) is subject to the stated requirements of s 572(1), namely: (i) that the variance is not material to the merits of the case; and (ii) that the accused person will not be prejudiced thereby in the person’s defence.^[41]
50. [50]
    As noted above, the indictment here specified count 10 in these terms:

“That on a date unknown between the first day of March, 2018 and the eighth day of April, 2018 at Bowen in the State of Queensland, [the appellant] raped [the complainant].”

51. [51]
    The marginal notes that accompanied count 10 read as follows:

“Count 10

Section 349(1) & (2)(a)

Criminal Code

Form 195”

52. [52]
    Section 349 of the Criminal Code relevantly provides:

“349 Rape

3. (1)
    Any person who rapes another person is guilty of a crime.

Maximum penalty—life imprisonment.

3. (2)
    A person rapes another person if—

1. (a)
    the person has carnal knowledge with or of the other person without the other person’s consent; or

2. (b)
    the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent; or …”

53. [53]
    As has been noted above (see paragraphs [30] to [45]) the sequence of events was that:

    1. (a)
       because the complainant had not come up to proof the prosecutor foreshadowed amending the particulars of count 10, to change “penis” to “finger”;
    2. (b)
       the trial judge observed that particulars were not constituent components of the indictment;
    3. (c)
       defence counsel sought and was granted the opportunity to take instructions overnight;
    4. (d)
       when discussing what both counsel should do with regard to the foreshadowed application to amend the particulars, the trial judge observed that the question of prejudice was applicable to an application to amend an indictment, but also to amendment of particulars;
    5. (e)
       the following day the prosecutor first sought to amend the marginal note for count 10, from s 349(2)(a) to s 349(2)(b), to reflect penetration with a finger rather than a penis;
    6. (f)
       that amendment was not opposed;
    7. (g)
       in respect of that amendment the trial judge found that: (i) the purpose of the amendment was to accord with the evidence, (ii) the defence case was that none of the acts occurred, (iii) the amendment was not opposed, and (iv) therefore there was no prejudice;
    8. (h)
       after that the prosecutor sought to amend the particulars to count 10 by substituting the word “finger” for the word “penis”; and
    9. (i)
       defence counsel did not oppose that amendment.
54. [54]
    As Counsel for the appellant on the appeal conceded, the fact that the particulars were amended after the amendment to the indictment made “arguments on leave to amend the particulars more or less moot here”.^[42]  As will appear, that concession was incorrectly made.
55. [55]
    The marginal notes in an indictment are an aid to, but not part of, the indictment.  So much is apparent from the provisions as to what an indictment is.  Section 564 of the Criminal Code relevantly provides:

“564 Form of indictment

3. (1)
    An indictment is to be intituled with the name of the court in which it is presented, and must, subject to the provisions hereinafter contained, set forth the offence with which the accused person is charged in such a manner, and with such particulars as to the alleged time and place of committing the offence, and as to the person (if any) alleged to be aggrieved, and as to the property (if any) in question, as may be necessary to inform the accused person of the nature of the charge.

3. (2)
    If any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment.

(2A) Despite subsection (2), a relevant circumstance of aggravation may be relied on for the purposes of sentencing an offender for the offence charged in the indictment despite the relevant circumstance of aggravation not being charged in the indictment for the offence.

3. (3)
    It is sufficient to describe an offence in the words of this Code or of the statute defining it.

(3A) An indictment for an offence may also state the offence is a domestic violence offence.

Example—

See the Penalties and Sentences Act 1992, section 12A for when a conviction for the offence must also be recorded as a conviction for a domestic violence offence or entered in the offender’s criminal history as a domestic violence offence.

3. (4)
    The place of trial is to be named in the margin of the indictment.”

56. [56]
    Further, the notes in the margin are there because, as a matter of practice, it is used to note the statutory provision which creates the offence.^[43]
57. [57]
    In R v EQ the charge was wrongly recorded in the margin note, giving the wrong section for what was, in fact, a charge under s 28(1) of the Crimes (Civil (Aviation) Act 1991 (Cth).  The margin note stated s 28(2)(b) of that Act, a different offence.  This Court referred to the note in this way: “The marginal note on the indictment was immaterial.  It was a formal defect.”^[44]
58. [58]
    In my view, that means that when s 572(1) refers to a variance between the indictment and the evidence, it is referring to a variance with the substantive part of the indictment, not the marginal notes.
59. [59]
    As the trial judge observed, the particulars are not part of the indictment either, though they serve the purpose of elucidating matters alleged in the indictment.  So much is reflected in s 573 of the Criminal Code, which deals with court ordered provision of particulars of an indictment:

“573 Particulars

The court may, in any case, if it thinks fit, direct particulars to be delivered to the accused person of any matter alleged in the indictment, and may adjourn the trial for the purpose of such delivery.”

60. [60]
    Section 573 makes the distinction between a “matter alleged in the indictment” and the particulars.  And that distinction is well recognised in authority.  In R v R this Court said:^[45]

“… [B]ecause … particulars must be read with the terms of the indictment to define the terms of the charge on the case which the Crown has to prove, it would be desirable if such particulars, in proper form, were read to the jury subsequent to the time of arraignment and before the opening of the Crown case. If … as occurred in this case, the jury is given a copy of the indictment before it retires to consider its verdict, it should also be given particulars in writing of each charge in proper form”.

61. [61]
    There is no doubt about the importance of particulars of an indictment.  They serve in part to give the accused sufficient indication of what is alleged against him or her on the occasion when he or she is said to have committed the offence.^[46]  The central role of particulars of an indictment was referred to in Patel v The Queen where Heydon J said:^[47]

“In Johnson v Miller, Evatt J said:

“It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection. These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularise the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged.”

But the importance of particulars does not lie only in relation to questions of inadmissibility for irrelevance. Particulars can also be necessary to enable the defence to make particular forensic judgments. Some concern the cross‑examination of prosecution witnesses. Others concern the marshalling and deployment of its own evidence. Parts of the trial record, incidentally, suggest that the present case may, with respect, illustrate Evatt J’s point that without particulars the prosecution can be as unsure of the case being run as is the court and the defendant.”

62. [62]
    Further, particulars of the indictment form part of the formal record of the court and bind the Crown until they are amended.^[48]
63. [63]
    However, none of those matters mean that the particulars form part of the indictment for the purposes of s 572(1) of the Criminal Code.

Amendment of the margin notes

64. [64]
    It follows that s 572(1) was not applicable to amendment of the margin notes or the particulars.
65. [65]
    However, whilst s 572(1) was not directly applicable to the amendment of the particulars, matters raised by s 572(1) are similar to those considerations that would be applicable upon an application to amend particulars.  For example, factors such as: (i) if it is the consequence of a variance between the evidence and the indictment, whether the variance is material to the merits of the case; and (ii) whether the defendant will suffer prejudice if the amendment is granted.
66. [66]
    Here no amendment was sought to the substantive part of the indictment.  However, it seems that the trial judge regarded the application to amend the margin notes as being an application to amend the indictment under s 572(3).  Hence his Honour gave reasons purportedly addressing some of the matters under s 572(1).  The comments which follow in paragraphs [67] to [77] below proceed on the basis, contrary to my conclusion above, that the trial judge was right in that approach.
67. [67]
    Under s 572(1) the power to amend could only be exercised if the trial judge considered that the variance between the evidence and the indictment was “not material to the merits of the case”.  The phrase is used in s 572(1) in relation to amending the Crown’s indictment, which sets out the case it intends to pursue.  Since prejudice to the defendant is a separate factor, the phrase “merits of the case” must, in my view, refer to the Crown case.  That is consistent with the fact that the Crown bears the burden of proving the offence it alleges beyond reasonable doubt, and the defendant is presumed to be not guilty until that offence is proven.  A defendant comes to court to meet the Crown case, which is what is in the indictment and particulars.  The way a defendant then defends that case is a different matter from the Crown case itself.
68. [68]
    Here the appellant came to meet a Crown case that count 10 was constituted by a penile rape.  That case was not supported by the evidence and as things stood at the end of the complainant’s evidence, absent amendment that case would probably fail.
69. [69]
    On that basis the trial judge was required to give consideration to whether the variation between the evidence and the charge of penile rape in the indictment was “not material to the merits of the case”.  And his Honour had to find that it was not material before the power to amend could be exercised.
70. [70]
    There was no apparent consideration of, nor any finding on, this aspect.  His Honour’s comments and findings went only to the question of prejudice, which is a different matter.  In that respect the trial judge fell into error.
71. [71]
    On the question of prejudice, it seems that his Honour’s response was the finding that the defence case was that none of the acts occurred.  That finding seems to have followed upon his Honour’s view that:

    1. (a)
       “the defendant’s case is simply one that none of these acts happened and that was, obviously, what was put to the complainant … So whether it’s a digital rape or a penile rape is neither here nor there”;^[49] and
    2. (b)
       as a preliminary observation, the “in a case where the defence is, ‘none of these things happened’, not that they might have happened by consent, or there might have been an honest and reasonable mistaken belief as to consent. That might be a different matter. But here, the defendant’s case is a very simple one: none of these things happened. So I simply make, as a preliminary observation, seems to be there’d be no prejudice caused to the defendant” by an amendment.^[50]
72. [72]
    Whilst there is a seductive simplicity to that approach it is, in my respectful view, erroneous.
73. [73]
    The trial judge’s comments, and finding are predicated upon the way in which cross-examination took place.  True it is that it was put to the complainant that “at no stage did my client sexually assault you in any manner or form at his residence” and “during this particular incident did not sexually abuse you in any shape or form”.^[51]  But those matters were being put in the face of the complainant saying that it was digital rape, not penile rape.  They were not in answer to an assertion of penile rape.
74. [74]
    Further, it is the Crown that bears the onus of showing that the amendment is material and the absence of prejudice.^[52]  No onus falls on the defence.  Beyond saying that the amendment was to account for the variance between the evidence and the indictment nothing was said by the Crown on those topics other than to adopt the comments made by the trial judge.
75. [75]
    In considering the question of prejudice the trial judge gave no consideration to some matters which impacted upon the question of prejudice:

    1. (a)
       the fact that, as matters stood at the time of the application to amend, the complainant’s failure to come up to proof meant that count 10 would probably fail, or there would be an application for a directed acquittal, and the appellant thereby might lose a chance of an acquittal;
    2. (b)
       that if count 10 failed, that could have an impact upon the jury’s consideration on other counts; and
    3. (c)
       that the case which the appellant came to meet was (on count 10), one of penile rape, not digital rape.
76. [76]
    The failure to properly address the question of prejudice has the consequence that, if s 572(1) applied to the margin notes because they formed part of the indictment proper, the order to amend the indictment was made in error.
77. [77]
    However, as set above, the correct position is that the margin notes did not form part of the indictment and s 572 was inapplicable to the application to amend them.  The order to amend those notes did not result in a miscarriage of justice.

Amendment of the particulars

78. [78]
    It is clear from the trial judge’s comments on the day prior to the application to amend (see paragraphs [53](b) and [53](d) above) that his Honour proceeded on the basis that the particulars were not part of the indictment itself.  There is therefore no reason to conclude that his Honour dealt with the application to amend the particulars as though it was governed by s 572.
79. [79]
    There is, in my view, an important difference between the two applications.  On an application to amend the indictment the Crown bears the onus of showing that the amendment is material and the absence of prejudice, and no onus falls on the defence.  As was held in CAE, that is the product of the words of s 572(1).^[53]  There are no similar words applicable to an application to amend particulars.  Therefore, the onus does not fall exclusively on the Crown.  If it is to be suggested that there is prejudice that will flow to the defence, the defence bears at least an evidentiary onus to show it.
80. [80]
    In this case, the sequence of exchanges between the trial judge and the defence counsel shows that:

    1. (a)
       defence counsel sought and was granted the opportunity overnight to take instructions on the amendment to the particulars;^[54]
    2. (b)
       the prosecutor and defence counsel were to consult as to the application to amend the particulars;^[55]
    3. (c)
       the trial judge highlighted that one consideration on the application to amend the particulars was the question of any prejudice to the defence;^[56]
    4. (d)
       the following day defence counsel did not oppose the amendment of the margin note, and no submission was made that there was relevant prejudice;
    5. (e)
       on the application to amend the margin note reasons were given that expressed a finding about prejudice; and
    6. (f)
       the application to amend the particulars was not opposed and no submission was made that there was relevant prejudice.
81. [81]
    In my view, the inference that must be drawn is that the response of defence counsel to the application to amend the particulars was considered and on instructions from the appellant.  That must be taken to include the absence of any suggestion of prejudice.
82. [82]
    In this Court counsel for appellant eschewed any reliance upon a case based on the incompetence of counsel at the trial.  In other words, this is not a case where it is suggested that the observations in Nudd v The Queen^[57] are applicable.  In Nudd it was said that the focus of the inquiry concerning incompetence of counsel is whether the result constitutes a miscarriage of justice.^[58]  Therefore, consideration of the issues on the amendment of the particulars must be approached on the basis that it is not contended that anything done by defence counsel at the trial resulted in a miscarriage of justice.
83. [83]
    Further, it is, in my view, plain that the reasons given by the trial judge on the application to amend the margin note were intended to apply to the amendment of the particulars, especially in the absence of the defence contending that there was relevant prejudice.  The foreshadowed application the day before was to amend the particulars.  That was done in a two-stage way, with the margin note first and the particulars second.
84. [84]
    However, even where defence counsel did not oppose the application to amend the particulars, in my view the trial judge had an overriding obligation to ensure a fair trial to the accused.^[59]  In that respect the comments made above in paragraphs [68] to [75] are equally applicable to that application.  There was no apparent weighing of the matters relevant to that amendment, and especially the appellant’s position.
85. [85]
    The result is that the order permitting the amendment of the particulars was in error and resulted in a miscarriage of justice.

Circumstances relating to the admission

86. [86]
    The sequence of exchanges between the trial judge and counsel, set out above in paragraphs [30] to [45], set the background to how the admission in Exhibit 9 came about.
87. [87]
    The trial judge received a note from the jury.^[60]  The note asked a number of questions about count 10.  Question 3 was, “How did this charge come about when penetration was never listed in a statement?”^[61]  When dealing with that question, the trial judge observed that he had not seen the depositions, but it was obvious that the complainant had made an allegation of penile rape.  He then asked how the Crown wished him to answer that question.  At that point, the prosecutor proffered an explanation of why count 10 contained an allegation of penile penetration.  That explanation was that the complainant said it was a penile rape in one of his statements.^[62]

Misapprehension about the cross-examination as to the complainant’s statements

88. [88]
    When the complainant was first cross-examined, the opening set of questions concerned the suggestion that in the three separate statements he had produced with police, he did not make any allegation of digital anal penetration at the appellant’s residence.  At that point the complainant agreed.
89. [89]
    However, when the cross-examination returned to that topic,^[63] the position was not so clear.  Having put to the complainant that the suggestion of digital anal penetration had not been mentioned by him to his girlfriend or the girlfriend’s mother (with which he agreed), the complainant volunteered “I’m pretty sure I did put it in the statement”.^[64]  On its face that was a caveat on the proposition concerning an allegation of digital penetration, not penile penetration.
90. [90]
    When that was challenged, it was by reference to the first statement he gave, on 2 February 2019.  It was put that he had not made mention of “being raped in the manner you described with a finger”, drawing the response, “Not that I see, as I haven’t properly had a skim and scan as I put the statement in a few years ago …”.^[65]  That again was with reference to digital penetration, not penile penetration.
91. [91]
    Then the cross-examination extended to the next two statements^[66] and it was put that in none of the statements did he make “that allegation”, i.e. an allegation of digital anal rape.  The response was, “I am not too sure as I don’t have it in front of me or anything”.^[67]
92. [92]
    The answers were such that the jury might have thought that the complainant was asserting that he was fairly sure that he did put an allegation of digital rape in one of his three statements, but not that the statements may have contained an allegation of penile rape.
93. [93]
    In the context of the discussion as to amendment of the particulars of count 10, the trial judge said, “… did I understand cross-examination to be to this effect, that the complainant provided three statements to the police, and in none of those statements did he allege any form of anal rape, whether that be penile or digital?”^[68]  That comment reflected a misapprehension about the scope of the cross-examination, which was concerned only with a previous allegation of digital rape.  His Honour was then told that there was an allegation of penile rape in the second statement.^[69]
94. [94]
    It was the next morning that the jury questions were asked.
95. [95]
    In the course of the discussion between the prosecutor and the trial judge, as to how to respond to the question, the prosecutor said:^[70]

“MR FRANCIS: With that background in mind, there’s no – it’s not correct to say – and this is what I’ve said to my learned friend during the cross-examination: that there was never an allegation. It’s not correct to say that he made no allegation of penetration in his statement.”

96. [96]
    That, too, reflected a misapprehension as to the scope of the cross-examination, which was confined to the question of a previous allegation of digital rape at the residence.
97. [97]
    In the course of the discussion, the Crown prosecutor observed that the cross-examination was in terms that might raise confusion as to whether there had never been an allegation of penetration at all.^[71] 
98. [98]
    In those circumstances his Honour said he thought that the jury’s question was a legitimate one.^[72]  His Honour went on, initially responding to a suggestion that the relevant questions in cross-examination had been objectionable:^[73]

“HIS HONOUR: Well, there was no … objection taken at the time, nor was there any attempt to re-examine the complainant. Now, I appreciate you haven’t closed your case yet and … that potentially … enables you to call further evidence as to the circumstances by which that count appears on the indictment. I mean, it’s a double-edged sword for the defendant. He gets the concession from the complainant who hasn’t come up to proof, clearly, on his statement, that he’s made no allegation of being digitally penetrated. But that exposed the defendant to coming out in evidence that, in fact, the allegation he made was penile penetration. Which is how the charge came before … the jury.

What I’m going to do is I’ll adjourn. I’ll let you and Mr Pack speak to each other as to a way forward or whether you wish to consider calling further evidence as part of your case, Mr Francis, given that the case hasn’t been closed. But I can’t simply say to the jury, I don’t know how the charge came about, in circumstances where we know exactly how the charge came about; and the fact that, simply put, the complainant hasn’t come up to proof.

I mean, it’s a double-edged sword going down this line. But might be done by way of an agreed admission. I’ll adjourn for a few minutes and, Mr Pack, you and Mr Francis can have a chat about how this might be dealt with. But it can’t be left up in the air.”

99. [99]
    When the matter resumed after a short adjournment the Crown prosecutor indicated his preference would be to apply to have the complainant recalled, so that he could be questioned about his statement again.^[74]  The prosecutor also proposed to use that opportunity to answer the first two questions concerning count 10 namely was there anyone else in the house at the time, and how much time had elapsed from driving from the house to a service station.  The prosecutor went on:^[75]

“If that can’t eventuate, then I would propose to our learned friend that an admission be made to the following effect: that on a certain date the complainant … gave a statement to police in which, as part of one of the acts at the house, he alleged there was penile rape, or something to that effect.”

100. [100]
     What then followed was a discussion about the impact upon the trial of relocating the complainant (who had left Townsville to return to his home).  The following exchange between the trial judge and defence counsel then took place:^[76]

“HIS HONOUR: But, in any event, my concern is insofar as the jury note is concerned, whilst I accept the bases upon which the complainant was cross-examined on that, it is factually true that he made no allegation of digital penetration, but that’s in the context of him in his statement making an allegation of penile penetration during the incident the subject of count 10.

And, quite frankly, he should have been re-examined upon that. And it’s, in fact, the same concern I raised yesterday at the close of play. I couldn’t work out if it be the case that there was no allegation of digital penetration, that in any police statement – well, the same thought crossed my mind, where did the allegation come from. And then I’m told, well, in fact, in his police statement he alleged penile penetration. So it seems that there can be no dispute about that. The question is how is that clarified with the jury. So you’ve spoken – Mr Pack, what’s your position on that?…

MR PACK: Your Honour, I’ve had an opportunity to take some instructions. My friend is … absolutely well within his rights to recall the complainant in this matter. As for … making some admissions, I’ve taken some instructions and I can’t get instructions to agree to any admissions on that part at the moment…”

101. [101]
     Discussion then continued focussing onto the Court’s difficulties caused by the disjointed way in which the trial had evolved.  His Honour added:^[77] “And now I’ve got to deal with a jury note which is provided in circumstances where I know if I simply say to the jury that they’re not to speculate about that, that is misleading”.
102. [102]
     Defence counsel then intervened to announce that he had taken further instructions from his instructor on the question of the admission, and he sought a five-minute adjournment to obtain instructions.  Defence counsel said he would revisit the issue with his client and his instructor.^[78]
103. [103]
     After a short adjournment, the prosecutor produced the admission that was agreed, with defence counsel saying, “Yes, I’ve seen it and my client’s seen it and there’s no difficulty with it”.^[79]
104. [104]
     That was followed by this exchange:^[80]

“HIS HONOUR: And that doesn’t diminish the force of the submissions you will no doubt make to the jury concerning the complainant’s credibility and reliability.

MR PACK: Yes.

HIS HONOUR: I mean, the reality is that the particulars document which the jury have obviously particularise count 10 as a penile penetration. The complainant didn’t come up to proof on that and he agreed that nowhere in his statement did he make any allegation of digital penetration, so that really is the force of that cross-examination from your point of view in terms of challenging the complainant’s credibility and the reliability, I would have thought.”

105. [105]
     Then, after dealing with two other questions raised by the jury, the trial judge turned to their question about how the allegation came to be made in count 10, that it was penile rape.  The jury were told that there was a joint admission, and it was read out:

“That in a statement dated 30 January 2020, [the complainant] made an allegation of penile penetration, by the defendant, at his house”. That admission was tendered as Exhibit 9.”

Discussion – the admission

106. [106]
     I have set out the sequence of events above in greater detail that might normally be the case, but in my view that is necessary in order to understand the material points that follow from it.
107. [107]
     First, the trial judge and the prosecutor proceeded on a misapprehension as to the scope of the cross-examination as to the complainant’s previous statements as to count 10.  That cross-examination was confined to whether there had previously been an allegation of digital rape at the residence, not whether there had been an allegation of penile rape.
108. [108]
     Secondly, that misapprehension led the trial judge into error in so far as his Honour proceeded on the basis that the complainant might be recalled in the Crown case to explain that he had previously made an allegation of penile rape in his statements.  The complainant had not been challenged on that.  He had only been challenged on whether he had previously made an allegation of digital rape and his answers seemed to accept that he had made no such allegation.  That proved to be right, as the admission shows, and as the trial judge instructed the jury.^[81]
109. [109]
     Thirdly, that misapprehension also lead the trial judge into error in so far as his Honour urged the parties to consider a joint admission to avoid the consequence of the complainant being recalled.  There was no proper basis for the complainant to be recalled.
110. [110]
     Fourthly, the trial judge erred in suggesting that the complainant should have been re-examined on whether he had previously made an allegation of penile rape at the residence: see paragraph [100] above.  The cross-examination did not provide a basis for that to occur.  The complainant simply did not come up to proof on count 10 in the way it had been alleged in the statement, and the particulars.
111. [111]
     Fifthly, those errors were compounded by the trial judge urging the production of an admission concerning the prior allegation of penile rape at the appellant’s residence.  The basis for that was an incorrect view that the evidence as to the prior allegation was relevant and should be admitted.  As demonstrated above it could not have been the subject of re-examination, and there was no basis to recall the complainant.  The pressure imposed on defence counsel, that otherwise there would be an unacceptable delay in the trial, was in error.  That defence counsel considered there was scope for the complainant to be recalled by the Crown and re-examined about the contents of the statements is beside the point.  Defence counsel made the concession that the prosecutor was “absolutely well within his rights to recall the complainant”,^[82] but by then he had been confronted by the evident attitude of the trial judge that that course should follow.
112. [112]
     Similarly, the fact that defence counsel sought specific instructions from his instructing solicitor as well as his client in relation to the admission is beside the point.
113. [113]
     Sixthly, those errors in approach were compounded by the trial judge’s view that if he directed the jury that they were not to speculate about how count 10 came to be framed as it was, that would be misleading them.^[83]  I am unable to follow how it could be that such a direction would be misleading.  It seems to be the product of the misapprehension as to the cross-examination and the erroneous view that evidence could be adduced that the complainant had made a prior allegation of penile rape at the appellant’s residence.

Failure to direct as to the admission

114. [114]
     When the admission was read to the jury the trial judge gave the standard direction to the effect that the facts contained in it were now part of the evidence and they were to treat those facts as proved.^[84]
115. [115]
     On that basis the trial judge then answered the jury’s question about the form of count 10:^[85]

“Question 3:

How did this charge come about when penetration was never listed in a statement?

You’ll understand from the agreed admission this morning, members of the jury, that in his statement, the complainant had alleged that the defendant had penetrated his anus with his penis at his house. The complainant accepted, in cross-examination, that nowhere in any of his statements did he allege, at the defendant’s house, that the defendant penetrated him with his finger. But that gives you an understanding as to how the charge was originally proffered.”

116. [116]
     In the course of the summing up the trial judge referred to the admission in several ways:

     1. (a)
        first, when explaining what evidence was;^[86] this replicated what had been said at the time of its being tendered;
     2. (b)
        secondly, when explaining direct proof, “items put into evidence as exhibits may also tend directly to prove facts, as does the admission”;^[87]
     3. (c)
        thirdly, when reciting what defence counsel had submitted as to count 10.^[88]
117. [117]
     Nowhere in the summing up did the trial judge explain to the jury how they could use the admission.  Specifically, they were not told that it was not evidence of the truth of the matters stated in it (i.e. the allegation of penile penetration), nor that its use would be limited to consideration of the complainant’s credibility and reliability as a witness.^[89]  It was essential to do so.^[90]  The failure to do so means that there was a real risk the jury would treat the previous allegation as true, and so influence their consideration of count 10, and the complainant generally.
118. [118]
     The admission that the complainant had previously alleged that the appellant had penetrated him with his penis at the appellant’s residence was plainly prejudicial to the defence.
119. [119]
     Further, the defence had established in cross-examination that the complainant’s version of events in relation to count 10 was something he had never alleged before.  That was something that the jury were required to assess in terms of the credibility and reliability of the complainant.  More importantly, if it led to a doubt about the truthfulness or reliability of the complainant in respect of count 10, the jury were correctly directed that that doubt had to be taken into account in their consideration of other counts.^[91]
120. [120]
     And, if their assessment of the complainant’s reliability and credibility on count 10 meant they were not satisfied beyond reasonable doubt of the appellant’s guilt on that count, the jury were correctly directed that that doubt had to be taken into account on the other counts.^[92]
121. [121]
     The admission, therefore, had a potential impact on all counts.  That serves to emphasise the necessity for careful directions as to its use.
122. [122]
     In my view, the circumstances surrounding the extraction of the admission and the failure to direct the jury as to the use they could make of it caused the trial to miscarry.

Ground 2 – unreasonable verdicts

123. [123]
     In a case where the ground is that the conviction is unreasonable or cannot be supported having regard to the evidence, SKA v The Queen^[93] requires that this Court perform an independent examination of the whole of the evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt.  It is also clear that in performing that exercise the Court must have proper regard for the pre-eminent position of the jury as the arbiter of fact.
124. [124]
     The role of the appellate court was recently restated in Pell v The Queen:^[94]

“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.”

125. [125]
     The High Court restated the pre-eminence of the jury in R v Baden-Clay.^[95]  As summarised by this Court recently in R v Sun,^[96] in Baden-Clay the High Court stressed that the setting aside of a jury’s verdict on the ground that it is unreasonable is a serious step, because of the role of the jury as “the constitutional tribunal for deciding issues of fact”,^[97] in which the court must have “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.”^[98]
126. [126]
     In R v Miller,^[99] this Court recently emphasised the proper approach to an appeal where this ground is advanced:^[100]

“[16] In our respectful opinion, not enough attention has been given to the limitations enunciated in M v The Queen 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.”

The evidence

127. [127]
     The appellant’s attack on this ground of appeal relied upon a number of contended difficulties with the evidence:

     1. (a)
        the complainant gave inconsistent evidence about whether the appellant placed his hand on top or underneath his clothing in relation to the offence in count 1;
     2. (b)
        while the complainant may well have appeared credible to the jury, the verdict of guilty for count 1 was unreasonable when having regard to the unchallenged evidence of the complainant and his step-mother, that the complainant was supervised at the waterhole;
     3. (c)
        the implausibility on count 2, of using his left hand to reach behind him and touch the complainant’s penis for a minute or two, while controlling the quad bike with only his right hand “at pace”, about 40 km/h on a dirt track with gullies, dips and bends, and, the implausibility of count 2 occurring when others were in the convoy on the quad bikes;
     4. (d)
        that the jury did not accept the complainant’s evidence regarding count 4, yet convicted of count 3 and other counts;
     5. (e)
        the complainant’s evidence regarding count 5 that they were “mucking around” in the room, that the appellant bear hugged the complainant, that the appellant rubbed his hand down the complainant’s chest, over his stomach and onto his penis, that the complainant did not object or say that he did not want the appellant to do this, despite the father immediately arriving;
     6. (f)
        the implausibility of the worker at the work site for count 6 (not to mention the absence of count 7 evidence);
     7. (g)
        count 10 was fundamentally inconsistent with his previous statement of penile penetration, not digital penetration; considering this fundamental inconsistency, it ought also to have caused the jury to have reasonable doubt for counts 8 and 9 because the three counts were inextricably linked;
     8. (h)
        the departure from the particularised case for counts 1, 6, 7, 10 and 12, as well as the change in sequence for counts 2 and the amended count 10;
     9. (i)
        that the complainant gave unreliable and materially inconsistent evidence regarding the dates as indicted as set out herein, and, the quality of the complainant’s reliability and memory was consistently poor, especially when challenged; far from remembering the key points, his account was “hazy”, he mistook key dates, he initially could not recall counts 11 to 13, he did not mention key allegations of oral sex (count 7) or touching of his bottom (count 12) and his allegation of digital penetration in the appellant’s house was inconsistent with his previous evidence of penile penetration; and
     10. (j)
         the matters raised in Ground 1 are relevant also warranting the verdicts of acquittal, as a jury properly instructed, ought to have done.

The evidence at trial

128. [128]
     The evidence at the trial came from the following witnesses: the complainant; KAR, the partner of the complainant’s father; the complainant’s mother, MOM; an investigating police officer; SOJ, the sister of KAR; and DAN, the former girlfriend of the complainant.

Evidence of the complainant

129. [129]
     The complainant was born on 8 April 2001.  The trial took place when he was 20 years old.  His approximate age at the time of the alleged offences was: counts 1 and 2, 10 years old; counts 3 and 4, between 10 and 11; count 5, 13 and a-half; counts 6-10, 17 years old; and counts 11-13, 17 and a-half years old.
130. [130]
     The complainant said he lived mostly with his grandmother, and otherwise was “bouncing between” his mother and father.  He said of the appellant, who was about 20 years older, that “As I thought, he use to be a best mate and an uncle...”^[101].  He first met the appellant when he (the complainant) was six or seven years old.^[102]  They would see each other at barbeques, camping trips and on river missions.^[103]
131. [131]
     The complainant said he had been sexually assaulted by the appellant seven or eight times.^[104]  He then was taken to specific events.

Count 1

132. [132]
     The complainant’s account was as follows:^[105]

     1. (a)
        the appellant grabbed his waist and put his hand down the complainant’s pants, and “grabbed my private parts”; by that he meant that he touched his penis;
     2. (b)
        it occurred at the Don River, at the end of Bootooloo Road;
     3. (c)
        the complainant was sitting on the appellant’s lap, in the water, with the appellant behind him;
     4. (d)
        he identified Exhibit 3 as a photograph of the swimming hole, with the appellant in the photo.
133. [133]
     In cross-examination as to count 1,^[106] the complainant accepted that he was quite young at the time of count 1, and that the times at the swimming hole meant there were parents and others present.  Other points were:

     1. (a)
        the area depicted in the photograph was fairly shallow but still around waist height;
     2. (b)
        when it was put to him that the skin-on-skin aspect was the first time he had made that allegation, the complainant said: “Yeah, as – I don’t really know as I don’t – I find it hard to understand sometimes”;^[107]
     3. (c)
        he was confronted with what he said in his 2019 police statement, namely that the touching was over the shorts; the complainant accepted he said that in the statement, then added:^[108] “I take it real hard to understand and I – as I say, as I can’t really explain a lot as, yeah, I’m not really the brightest spark in the shed. But yeah, that’s …”;
     4. (d)
        then, it transpired that the 2019 statement did make an allegation of skin-on-skin contact;^[109]
     5. (e)
        the contact occurred underwater so others could not really see it; and
     6. (f)
        the complainant did not accept when it was put to him that the event did not happen.

Count 2

134. [134]
     Count 2 was given out of chronological sequence, coming after what the complainant said about count 5.  The complainant said he could recall an occasion when he and the appellant were on a quad bike and were going down to the river where everyone else was:^[110]

     1. (a)
        the appellant was in the front, driving, the complainant was behind him;
     2. (b)
        the appellant “grabbed his left hand from the handlebars, his right hand was still on the throttle. He’s just come down and grabbed onto my penis and rubbed around it”; it was on the outside of the pants;
     3. (c)
        the rubbing lasted a minute or so; and
     4. (d)
        they were travelling at about 40 kmph at the time.
135. [135]
     In cross-examination as to count 2,^[111] the complainant accepted that the quad bike may have been going faster than he estimated.  He rejected the proposition put to him, that he made up the allegation.

Count 3

136. [136]
     The complainant’s account was as follows:^[112]

     1. (a)
        once when they left the river and were going to the complainant’s father’s house, the appellant was driving his gold-coloured Falcon;
     2. (b)
        the complainant was in the passenger seat and the appellant was driving;
     3. (c)
        the appellant reached over and grabbed the complainant’s penis, underneath his clothing;
     4. (d)
        that lasted a couple of minutes.
137. [137]
     In cross-examination as to count 3,^[113] it was established that the road they were driving on was one which passed farms and farm machinery could be encountered on it, and it had some potholes.  Other relevant points were:

     1. (a)
        they were both wearing seatbelts; and
     2. (b)
        the complainant’s board shorts were done up with laces and he was wearing underpants.

Count 4

138. [138]
     This was alleged to have occurred at the same time as count 2.  The complainant said:^[114]

     1. (a)
        after the appellant had grabbed the complainant’s penis,^[115] while he was driving the car at 60 kmph, the appellant “came over and put his mouth over my penis”;
     2. (b)
        the appellant leant over the centre console to do that;
     3. (c)
        it lasted a couple of seconds;
     4. (d)
        he was about seven or eight years old at the time;
     5. (e)
        the complainant could not “explain that whole situation … see it’s just so long ago , I’ve -  come to - … yeah, the blurred vision”; and
     6. (f)
        Exhibit 4 was a photo of the appellant with his gold-coloured Falcon.
139. [139]
     Cross-examination as to count 4^[116] followed those parts relating to count 3.  Relevant points made include:

     1. (a)
        the complainant was confronted with his police statement where he said that during this trip his penis was sucked “about eight times”; initially he could recall saying that but accepted it when he saw the statement;
     2. (b)
        the complainant explained the discrepancy by saying that “I think I’ve skimmed over and haven’t read this part”; and
     3. (c)
        the complainant rejected the suggestion that counts 3 and 4 did not happen.

Count 5

140. [140]
     The complainant’s account of the event was given out of chronological sequence, and came after his evidence on counts 8-10.  He said:^[117]

     1. (a)
        he could recall an occasion when he and the appellant, and the complainant’s father, were staying at the Alva Hotel in Mackay; he and the appellant had single beds in the same room, whilst the father was in the second room;
     2. (b)
        he and the appellant were mucking around, and the appellant got the complainant is a bear hug using his arms and legs;
     3. (c)
        the appellant’s hands were around his upper body;
     4. (d)
        this exchange took place in examination in chief:

“What did his hands do during that time?---If I do recall – but I’m not too sure as I was so young, as I was saying – yeah, I get real glimpse images of it.

So what are the memories that you have while he’s grappling you?---Basically that’s what I could remember – as that. I don’t know if anything was further, but, yeah, I was just so young for – yeah, to remember that, so - ”;

5. (e)
   asked then whether the appellant’s hands left the upper body, the complainant said:

“So at what point did they leave your upper body?---I’m not 100 per cent sure to be honest. They might have gone down to my hips, but that’s – as I’m saying, I’m not 100 per cent sure because I was so young. And everything – yeah, everything’s so quick. And for me to freeze and not say nothing.”

6. (f)
   the complainant then explained what he could recall; it was that the appellant put his hand down and rubbed the complainant’s penis for a couple of seconds;
7. (g)
   they each went to their beds as the father walked in; the complainant said nothing as it “Would have probably turned tables for the worst”; he went on:

“As growing up, I didn’t really like fighting at the time. I didn’t like violence or anything like that. So I was pretty quiet. So I’d like to keep everything peaceful. But, yeah, I should have said something but – yeah. I just kept everything quiet for so long.”

8. (h)
   As to what happened when his father came in the complainant said: “Not 100 per cent sure on anything of that as – yeah. I don’t remember it.”; and
9. (i)
   Exhibits 6A-6C were of the rooms in the hotel.

141. [141]
     In cross-examination on count 5,^[118] it was put to the complainant that his recall was “a bit hazy”, to which he responded: “It is a little bit because I’m trying to refresh my mind a little bit as it was so long ago,” and “It is a little bit hazy”.  The complainant went on: “Sorry if I’m not making – yeah – I don’t really understand a lot.  I find it real hard to understand stuff but …”.
142. [142]
     However, the complainant rejected the suggestion that it did not occur.

Count 6

143. [143]
     As the complainant moved from count to count in his evidence in chief he was often prompted by being asked what his next memory was.  He moved to the events that comprised counts 6 and 7:^[119]

     1. (a)
        the appellant asked him to do some work for him at Abbot Point, setting up tents and tables; the tents and tables were for a protest about the trains at Abbot Point; the complainant was promised $100 for the work;
     2. (b)
        at about midday the complainant and the appellant were sitting in a HiLux ute which they had taken from the appellant’s boss’s house; they were parked off the side of the road;
     3. (c)
        one of the appellant’s workers was already there, setting up tables; that worker was the only other person there;
     4. (d)
        then, “he’s come over and he’s rubbed me up on my penis over my shorts”; “He just came over after doing a little bit of work, and he’s rubbed up next to me and then … that’s where he grabbed me”; and
     5. (e)
        the complainant said that was all that had occurred on that occasion.
144. [144]
     In cross-examination on the occasion of count 6,^[120] the complainant agreed that all that happened was that he was touched over his shorts.  It was put to him that he had never made that allegation before, and he responded:^[121]

“- - - but you have never raised that before in any police statement that you’ve given?---As I’m saying, some of it I’ve – yeah. Yeah. I don’t even know to be honest, because – yeah. Everything’s, yeah, flashing back at me and that. And I’ve only just been starting to remember parts of it for the last few years because I’ve been giving statements and getting a lot of questions asked and it’s just - - -

Sure?--- - - - been a lot of stress on me, mate.

Sure. So is it your evidence then that this particular incident is all a bit hazy – is that the case?---It is hazy, but it is true.”

145. [145]
     Other points from that cross-examination include:

     1. (a)
        the complainant described his memory of details as “it’s hazy then and now, still is”;
     2. (b)
        as to whether he was contacted directly by the appellant with the offer of work, or via his parents: “I’m just not sure, mate. You’ve made me real confused, sorry.”
     3. (c)
        In his statement he said the offer was for $50, but he did not put in the statement that the appellant gave him an extra $50; and
     4. (d)
        he rejected the suggestion that the event did not happen.

Count 7

146. [146]
     The complainant said nothing about count 7 (oral sex in the HiLux on this occasion).

Counts 8, 9 and 10

147. [147]
     The evidence then moved to the events that were the subject of counts 8, 9 and 10 on the indictment.
148. [148]
     The complainant said:^[122]

     1. (a)
        later the same day as count 6, the appellant asked to meet the complainant, saying he would get the complainant’s money;
     2. (b)
        they went to the appellant’s parents’ house;
     3. (c)
        they went upstairs, the appellant to get his work stuff ready, and the complainant to have a smoke;
     4. (d)
        the complainant was sitting on a chair at the dining table;
     5. (e)
        “He came over after that and started touching me and that’s where he pulled down my pants and started … playing with my penis”;^[123] this consisted of rubbing it for a few minutes;
     6. (f)
        the appellant was rubbing him on the penis underneath his shorts, then pulled the shorts down, where they ended up around his ankles;
     7. (g)
        the appellant also put his mouth over the penis^[124]; that lasted a few minutes;
     8. (h)
        the complainant was shocked and stayed on the chair;
     9. (i)
        the appellant put his whole mouth over the whole of the penis and sucked it for a few minutes;
     10. (j)
         the appellant then put some lubricant over the complainant’s penis, as well as on the appellant’s finger;
     11. (k)
         by then the complainant was standing up;
     12. (l)
         the appellant reached over the complainant’s right side and “tried to stick his finger in the middle of my bum cheeks, and that’s where I’ve turned around and said no”;
     13. (m)
         the appellant put part of his finger in the complainant’s anus; a “fingernail width – centimetres … before the first knuckle”;^[125]
     14. (n)
         he could feel that it was a finger that was inserted into his anus;
     15. (o)
         the complainant described himself as being “shocked, frozen, and really, had nothing, really, to say, as I have for many years until, yeah”;
     16. (p)
         nothing else took place on that occasion; and
     17. (q)
         Exhibits 5A – 5E identified various parts of the room and furniture.
149. [149]
     As to count 10, cross-examination of the complainant commenced with establishing that the complainant had never before made the allegation of digital rape.  The complainant accepted that to be so.^[126]  Cross-examination returned to count 10 continued, making these points:^[127]

     1. (a)
        the complainant had not made the allegation of digital rape to his girlfriend or his mother; the answers were qualified:^[128]

“Right. And also with your mum, … as well; you never told her that either?---Not that I recall, no. I’m pretty sure I did put it in the statement.

Yes. Well, I suggest to you on that point that you didn’t; you never actually make any mention of being raped in the manner you described with a finger in your statement at all?---Not that I see, as I haven’t properly had a skim and scan as I put the statement in a few years ago and now I’m just starting to resurrect up all this again.

Yes. But you’ve had plenty of opportunity to raise that allegation - - -?---To be honest – to be honest, I don’t really like to think about it or anything like that because it stresses me out, and that, and gives me anxiety.”

2. (b)
   the complainant explained that he met the appellant later the same night after the occurrence of count 6:

“I don’t really know how to explain that as, you know, he still was a family friend and that, and – yeah. I don’t really know how to explain it.”

3. (c)
   the complainant agreed that he only said no to the digital rape after the finger was inserted, saying, “I was frozen solid. I can’t really do much when I’m frozen solid as I was, yeah. Panicked.” and
4. (d)
   the complainant rejected the suggestion that there was no sexual assault whatever at the residence.

Counts 11-13

150. [150]
     Counts 11-13 were all said to have occurred on the one occasion on the Don River.  The complainant explained that river missions involved a full family event where families have a few beers and bikes were taken along and they would “run amok”.  The complainant said that out of all those four or five occasions he could remember one:^[129]

     1. (a)
        he was with the appellant at night when they parked the car and the appellant turned off the lights;
     2. (b)
        they were standing at the front of the car, the appellant with his back to the bull bar and the complainant facing him;
     3. (c)
        the appellant grabbed the complainant’s penis;^[130] that lasted for three or four minutes;
     4. (d)
        the appellant crouched down and started sucking on the penis^[131] for about a minute and a-half;
     5. (e)
        the complainant had a smoke and then asked to be taken home, and he did; and
     6. (f)
        nothing else happened on that occasion.
151. [151]
     As can be seen the complainant did not say anything about count 12 (being touched on the buttocks on this occasion).
152. [152]
     In cross-examination as to counts 11 and 13,^[132] the following points were made:

     1. (a)
        the complainant had difficulty recalling the words in his police statements, saying he was “very confused and that as to words”;
     2. (b)
        the complainant explained the differences between his oral evidence as to the time and duration of the events (7 pm and three to four minutes) and what was in the statement (10 pm and “it felt like it went on for about half an hour”) as being that he did not read that part of the statement; and
     3. (c)
        the complainant rejected the suggestion that there was no sexual abuse whatever.

Evidence of KAR

153. [153]
     KAR was the partner of the complainant’s father.  She explained that she knew the appellant and could identify his cars.  She explained the nature of the family and friends gatherings on the Don River, and how the participants used quad bikes to get there.  The appellant was one participant.  When he was about 16 the complainant also did some work for the appellant.
154. [154]
     In cross-examination KAR agreed that when she went to the gatherings at the swimming hole she was there in a supervisory capacity, as well as for the social aspects.  She agreed that the water level would vary according to the season.  She also agreed that the road there was partly dirt, and one where care needed to be taken.
155. [155]
     KAR said that the complainant had not raised any of the matters the subject of the charges.

Evidence of the complainant’s mother, MOM

156. [156]
     MOM gave general evidence about the complainant’s upbringing.  She said that the complainant had made allegations about the appellant.^[133]  The complainant had posted on Facebook that he was upset.  That led to contact with MOM, and the complainant told her: (i) he was sick to the stomach that he was touched up by a gay person, (ii) that he (the complainant) was “not a gay cunt like him.”; and (iii) his father would not believe him; and (iv) that the appellant had “felt him up” when he was nine or 10 years old.
157. [157]
     There was no cross-examination of note.

Evidence of SOJ

158. [158]
     SOJ was the sister of KAR.  She booked the hotel room where the complainant, his father and the appellant stayed.  There was no cross-examination.

Evidence of DAN

159. [159]
     DAN was the former girlfriend of the complainant from 2018 to 2020.  She met the appellant a couple of times.  She said the complainant had made allegations about the appellant:^[134]

“He said he was about eight or nine. He was in the car – I’m not sure where he was going – but [the appellant] was trying to touch him in his private parts inappropriately through his pants. [The complainant] would push him away but it wouldn’t stop him. He’d just go back and try again. And I think it happened more than once.”

160. [160]
     There was no cross-examination.

Evidence of the police officer

161. [161]
     The investigating officer gave evidence concerning aspects of the investigation, including attempts to gather evidence and taking and retrieving photos.

Consideration – Ground 2

162. [162]
     For the reasons which follow this ground must be rejected.
163. [163]
     The submissions urge that inconsistencies in the evidence are such that the jury could not have accepted the complainant’s evidence to the requisite standard.  I disagree.  Such inconsistencies are to be expected when a witness is recalling events from as long ago as 11 years and doing so from a memory that has been impacted by those very events.  The complainant was up front in confessing the imperfect quality of his recall, yet was able to give considerable detail of places, general timing, surrounding events, and the particular conduct.
164. [164]
     True it is that his account of count 10 was one which he accepted that he had not given before.  But that does not mean the jury was obliged to reject his evidence otherwise.  With the exception of those counts about which he said nothing (counts 7 and 12), count 10 was the only one where there was a major departure from what he had previously said.  He offered an explanation for that, saying that he had not paid sufficient attention to the statement.  It was an explanation that was offered in respect of other discrepancies.  There is no compelling reason why the jury, who got to see the evidence given in person, should not have accepted that explanation.  Especially where the offences are committed in a way that impacts upon memory.  This sort of sexual offending notoriously results in victims who try to suppress their memories, and have them surface years later in ways that are not obviously logical.
165. [165]
     The appellant’s complaint here that there was inconsistent evidence about whether the appellant placed his hand on top or underneath the clothing in relation to the offence in count 1, is an example of overreach on a ground such as this.  The allegation of skin-on-skin contact was made in the 2019 statement.  There was no inconsistency.
166. [166]
     The same response can be made to the second submission, namely that while the complainant may well have appeared credible to the jury, the verdict of guilty for count 1 was unreasonable when having regard to the unchallenged evidence of the complainant and his step-mother, that the complainant was supervised at the waterhole.  The complainant’s evidence was that the water was waist high and the contact occurred beneath the water.  If the jury accepted that to be so, then evidence of supervision is inutile.
167. [167]
     The next submission is that there was such implausibility in one respect that the jury could not accept the complainant’s evidence generally.  That submission was that there was implausibility on count 2, of the appellant using his left hand to reach behind him and touch the complainant’s penis for a minute or two, while controlling the quad bike with only his right hand “at pace”, about 40 km/h on a dirt track with gullies, dips and bends.  Here is nothing inherently implausible at all.  The evidence was that the appellant was an experienced rider.  Nothing about the road or speed makes that manoeuvre implausible.  And the evidence did not establish that on that occasion there was a convoy on the quad bikes.  Even if there was, those ahead are hardly likely to screw their heads around to scrutinize a bike to the rear.
168. [168]
     Another submission is that the jury did not accept the complainant’s evidence regarding count 4, yet convicted of count 3 and other counts.  The example is a poor one for the purposes of this ground.  There was an obvious difference between what was alleged for count 4 and for count 3.  Count 3 was something not unlikely when driving, that is, reaching across and using the free hand to touch.  Count 4 required acceptance that the driver, still driving, leant across to suck the complainant’s penis.  The jury could well conclude that such a manoeuvre is inherently unlikely.^[135]
169. [169]
     Similarly, the submission as to count 5 is misplaced.  It is that that the complainant did not object or say that he did not want the appellant to give him a bear hug or touch him, despite the father immediately arriving.  The evidence was that everything ceased when the father walked in.  And, the complainant was scared of making things worse and therefore did not speak up.  That does not give cause such as to compel rejection of the complainant’s evidence.
170. [170]
     The next is equally misplaced.  It is that there was some sort of implausibility about count 6 occurring because a worker was there, working.  That does not follow.  The complainant and appellant were in a vehicle, parked to one side.  The worker was outside somewhere, working.  Offences of a sexual nature are often carried out brazenly or in a risky way.  That is not to say that was the case here, but the mere presence of a worker somewhere else does not lead to doubt on count 6.
171. [171]
     That the complainant did not come up to proof on counts 7 and 12 does alter matters.  It simply means that he did not give evidence that which he was expected to give.  But that does not mean that his evidence on other counts must be rejected, or that such doubt is necessarily created that the jury could not reach a conclusion of guilt beyond reasonable doubt.
172. [172]
     In oral address some emphasis was given to the many statements by the complainant in his evidence that his recall was hazy, or poor, or affected by the events, and even that he was not smart.  The jury was in the best position to assess whether that meant that the complainant’s evidence was so unreliable that they could not be satisfied of guilt.  This Court is at a distinct disadvantage by comparison.  The submission made does not come to terms with what was recently said by this Court in R v Miller:^[136]

“[16] In our respectful opinion, not enough attention has been given to the limitations enunciated in M v The Queen 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.

[19] The burden upon an appellant who relies upon this ground is heavy and an appellant, by merely asserting the ground, does not force the Crown to prove its case for a second time.”

173. [173]
     The appellant’s submissions do not demonstrate why the features about which complaint is made 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”.
174. [174]
     This ground fails.

Conclusion

175. [175]
     The foregoing reasons warrant the conclusion that there has been a miscarriage of justice which potentially affects all convictions and they must be set aside.  A new trial should be ordered.
176. [176]
     I propose the following orders:

1. Appeal allowed.

2. Set aside the convictions recorded on 23 April 2021.

3. A retrial is ordered.

177. [177]
     McMURDO JA:  I agree with Morrison JA.