R v MDQ[2023] QCA 149

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with the reasons of Livesey AJA and Callaghan J that the appellant has failed to show a miscarriage of justice based on the first and second grounds of appeal.
2. [2]
   The third ground of appeal is that the prosecutor’s final address to the jury included inappropriate remarks which may have improperly influenced the jury occasioning a miscarriage of justice.  For the reasons set out below, I have reached a different conclusion on this ground to Callaghan J and consider that the appeal should be dismissed.

The evidence relating to the complainant’s mental health issues

3. [3]
   In order to put the prosecutor’s address to the jury into context, I will refer to aspects of the evidence adduced at the trial concerning the complainant’s mental health issues and the purposes for which the prosecutor and the appellant’s trial counsel ultimately used this evidence at the trial.
4. [4]
   There was an incident on 21 November 2020 when the complainant self-harmed.  The complainant reached out to her sister-in-law the following day and made preliminary complaint about the incidents on 26 December 2019 and 25 January 2020 when she said the appellant had touched her.  The allegations were revealed to the other members of the family later on 22 November 2020.
5. [5]
   The complainant explained in the s 93A statement that was recorded on 8 December 2020 the circumstances in which she had made the preliminary complaint to her sister-in-law:

“So, I had gotten into a fight with Mum and Dad because I self-harmed badly on my wrist and they thought I had, I was over um, self-harming and they didn’t um, understand why I did it. Um, and [my sister-in-law] understands self-harming and all of that, so I went over to her house to talk about that and I wasn’t intending to tell her about [the appellant], but it just blurted out.”

6. [6]
   After answering further questions about the preliminary complaints made to family members after the first disclosure to the complainant’s sister-in-law on 22 November 2020, the following exchange took place between Sergeant Bradley and the complainant in the s 93A interview:

“SGT BRADLEY: Okay. Um, and so since that, that time that ah, everything’s happened on Australia day and um, and you told everybody, what um, has it happened aga-, have you told anybody else since?

[COMPLAINANT]: No.

SGT BRADLEY:  No? Um, have you been to any counselling or anything like that who--

[COMPLAINANT]: Oh, yeah. Um--

SGT BRADLEY: Yep.

[COMPLAINANT]: I’ve been seeing a psychologist and psychiatrist for, I think the middle of the year, because I’ve been struggling mentally a lot on this year. Um, and I see my school counsellor and um, she was, I told her um, and she, I see her like, every day because I struggle to go to classes um, ‘cause I just have panic attacks. So, she, we just basically um, talk about what I think I can do today and if I think I can’t do a subject, I stay with her.

SGT BRADLEY: Okay, yep.

[COMPLAINANT]: So, yeah I told her. And I’ve told my psychologist.”

7. [7]
   At the conclusion of the s 93A interview, the following exchange took place:

“SGT BRADLEY: How, how long have you been self-harming?

[COMPLAINANT]: Um, a year probably. Um, I started self-harming like, after a lot of it happened. I don’t know if um, it played a very big factor in it, because I didn’t know how to deal with that emotion.

SGT BRADLEY: Yep.

[COMPLAINANT]: And then um, after all that happened, I just went into a bad place and I started getting help--

SGT BRADLEY: Mmhmm--

[COMPLAINANT]: But after all of this has came out, I’ve been doing really well ‘cause it’s no longer a secret.”

8. [8]
   The cross-examination of the complainant in the s 21AK pre-recorded evidence included the following.  The complainant started high school in 2019 and was on medication that caused her anxiety.  As soon as she went off the medication, the anxiety went away.  When she started high school, she probably had friend problems and she was being bullied at school.  She denied self-harming and cutting before she started high school.  When she started cutting herself and self-harming, she kept it from her parents for about two months.  Her sisters had known earlier.  She continued to self-harm and cut herself after her parents found out.  In response to the proposition that the self-harming started around the time, if not before, that the complainant started high school when she was being bullied, the complainant responded:

“It wasn’t. The first time I self-harmed was after the whole incident happened. That’s when I started. And that’s the year I started counselling, and that’s the year I started being suicidal. So it was nothing to do with being bullied and it was nothing to do with any of that.”

9. [9]
   The complainant had a fight with her parents after they found out about the self-harm incident on 21 November 2020.  They wanted to know why she was self-harming.  At first she did not tell them that anything had happened with the appellant when her mother was asking her what was the trigger.
10. [10]
    Later in the cross-examination, the complainant explained that she first saw the school counsellor when she started self-harming which was after the incident (with the appellant) had happened.
11. [11]
    The complainant’s father’s evidence included the following.  The complainant had trouble fitting in when she returned to school in 2020.  She would not go to the classroom and stayed in the support room for children who were struggling in the classroom environment.  She became very withdrawn.  He became aware in 2020 that the complainant was starting to self-harm.  When he found out on the morning of 22 November 2020 that the complainant had self-harmed the night before, he was angry and concerned and was stern with the complainant.
12. [12]
    The complainant’s mother noticed something changed in the complainant in February or March 2020.  She withdrew.  She did not want to perform dancing or music which she had done since she was three years old.  The complainant’s mother only became aware around July 2020 that the complainant was self-harming.  On 22 November 2020, the complainant’s mother became aware that the complainant had self-harmed the night before.  The complainant’s mother was angry on 22 November 2020 when she found out about the complainant’s self-harming and asked the complainant what the trigger was.
13. [13]
    The complainant’s sister who was married to the appellant at the dates of the offences became aware that the complainant was self-harming about May 2020.
14. [14]
    The appellant gave evidence that he became aware that the complainant was self-harming from early 2019 around the time that the complainant had commenced high school.

The trial judge’s ruling

15. [15]
    Before the addresses, the learned trial judge raised with the prosecutor the relevance of the evidence of the changes that witnesses observed to the complainant’s behaviour, personality or attitudes in 2020.  The prosecutor indicated that she was proposing to argue to the jury that the complainant’s self-harming was a result of the appellant’s offending.  The trial judge noted that the defence relied on the evidence about the self-harming as leading to the complainant’s conflict with her parents which led to what was alleged to be a fabrication of a false complaint against the appellant.  Apart from one exception set out in the next paragraph, the trial judge ruled that the jury would not be able to use the fact that witnesses noticed changes in the complainant’s behaviour in support of the complainant’s evidence in the absence of any expert testimony to the effect that those behaviours could be a consequence of the subject incidents (the trial judge’s ruling).
16. [16]
    The trial judge made clear that the evidence of the complainant’s refusal to visit or stay at the appellant’s residence whenever that occurred after Australia Day 2020 was relevant to the prosecution case and could be relied on in argument and was not otherwise caught by the ruling in relation to the evidence of changes in the complainant’s behaviour that were not supported by expert testimony.

The addresses to the jury

17. [17]
    The appellant’s trial counsel appropriately identified for the jury that they could only convict the appellant if they accepted the complainant’s evidence beyond reasonable doubt.  Consistent with the appellant’s evidence that he became aware the complainant was self-harming from early 2019, the appellant’s trial counsel submitted to the jury that the complainant was a troubled teenager having difficulties at school, with friends and with bullying and her self-harming dated from the time when those difficulties emerged (in 2019) and she made up the allegations against the appellant to explain to her parents why she had self-harmed on 21 November 2020 when they were angry with her for doing so.  It was put in these terms to the jury by the appellant’s trial counsel:

“It may be the situation or you may think it is the situation that [the complainant] was a troubled teenager, that she had difficulties at school, had difficulties with friends, had difficulties with bullying. A number of the witnesses have quite candidly said that teenage girls, when they start high school, will have difficulties, and that might be within your own experience or something you accept as being the situation, at least for [the complainant]. You might understand and accept from your own experience or from the evidence that troubled teenagers are sometimes confused. They sometimes need attention. They can exaggerate, and they are capable of flights of fancy that they share with others. You might also accept that [the complainant] was self-harming, as said by the [appellant], from the time that she was being bullied and having trouble at school. You heard her parents accept that when they found out she self-harmed, they were angry. You’ve heard [the complainant] say that when they found out she self-harmed on the night before the 22^nd of November, they fought about it. You may think that the reason [the complainant] told [her sister-in-law] what she did that night was because she had self-harmed, and her parents were angry and looking for her to give them a reason why that had occurred. You might think that the self-harming behaviour was the cause of the allegations and not a consequence of something done by [the appellant].”

18. [18]
    On the appeal, in seeking to establish the third ground of appeal, the appellant’s counsel identified in the prosecutor’s address to the jury two categories of submissions, the first of which what were described as “intemperate remarks” and the second of which were the submissions that were submitted to be outside the trial judge’s ruling set out above.
19. [19]
    The bolded parts of the following remarks at the commencement of the prosecutor’s address were characterised as intemperate remarks:

“The [appellant] was [the complainant’s] brother-in-law. He was a trusted family member. He was part of their innermost circle. They loved him. He betrayed them. He betrayed [the complainant]. He was supposed to protect her. He was supposed to care for her, and he was supposed to look after her. Instead, he violated her. He took advantage of a young child when there was no one in [the] state to protect her, when there was no one who could assist her.”

20. [20]
    There was one other submission characterised as intemperate remarks relied on for the purpose of this ground of appeal.  That was the prosecutor’s comment that it was “difficult” for the complainant at 14 years old to tell the police what the appellant did to her and for her to have to give evidence almost two years later and she was required to relive what the appellant did to her on both occasions.  After making the comment that all of that was “difficult”, the prosecutor then remarked “but [the complainant] was brave”.
21. [21]
    The sentence that is bolded in the following extract from the prosecutor’s submission emphasising that it was only the complainant who could tell the jury what happened to her is the first passage that the appellant now submits was outside the trial judge’s ruling:

“So focus on her evidence. Focus on what she told police. Focus on what she told the court. focus on her actions, on her demeanour and her real and her raw emotion. Remember, [the complainant] is a child. She has the same frailties and emotions that we all do. Common-sense and wisdom tell us there is no one way any child or any person should act when they are sexually abused. The variety of ways in which abuse can occur is as vast as the reactions of its victims.”

22. [22]
    Also of significance to the third ground of appeal in this second category were the submissions of the prosecutor as follows in which the specific passages relied on as falling within the second category are bolded:

“Importantly, ladies and gentlemen, in her interview with police, when asked to describe the [appellant], she broke down. She broke down in tears. What you saw was real, raw, emotion. It was a real reaction from a child who has experienced terrible abuse from a trusted family member. That raw emotion she experienced was because these things happened to her. In her evidence in court, you saw [the complainant] break down on multiple occasions. She became visibly upset. She was distraught, devastated, frustrated at the suggestion that these things did not happen to her. It was an affront to her that anyone could ever suggest that, and it significantly affected her. It deeply upset her. Again, that supports the truthfulness of what she says happened to her. Her passion and her emotion suggest that you should all accept that she is an honest and a reliable witness.

You heard evidence from [the complainant] that she refused to sleep over at the [appellant] and [his wife’s] house after he did this to her. She did not want to go to their house in [the suburb where they lived when she said the incidents occurred] and later their house in [another suburb]. That is precisely the kind of behaviour you would expect from someone who has been sexually abused. This supports her evidence. You have heard evidence during this trial that [the complainant] commenced self-harming as a result of what the defendant did to her. She said in her cross-examination, … in the record:

‘The first time I self-harmed was after the whole incident happened. That’s when I started, and that’s the year I started counselling, and that’s the year I started being suicidal.’

The defence put to [the complainant] that her mental health declined in 2019, but clearly [the complainant] suggests otherwise. Additionally, her mother, her dad, and her sister all gave evidence that it was 2020 they noticed a change in her behaviour. It was 2020 they became aware that she was self-harming. It was 2020 that [the complainant] was no longer the happy girl that she used to be. She was withdrawn. She reluctantly came out of her bedroom when the family was over. She said she did not want to be around anyone. She said it would be easier if she was not around. She started spiraling. She did not want to be in front of people. You heard that evidence, ladies and gentlemen, from her mum. You may be wondering to yourself why didn’t [the complainant] tell anyone sooner. As I said earlier, there is no one way in which a child or a person should react when they’re exposed to offences of this nature. People deal with these kinds of traumatic events in very different ways. For some victims of sexual abuse, they never tell anyone. They keep it to themselves. There are many reasons why people don’t tell people. Such reasons include fear, not knowing what to do. The list goes on. The fact that [the complainant] did not tell anyone until quite some time after it happened is precisely how you would expect her to act in the circumstances, to hide it, to not mention it for months. She told you she was scared. Sadly, [the complainant] had to deal with this by herself for a very long time.”

23. [23]
    The prosecutor concluded her address to the jury by repeating her earlier submission that the jury should focus on the complainant’s evidence including repeating her submission that they should focus “on her real and raw emotions” in what the complainant told police and what she said in court and the certainty with which she said it.

The summing up

24. [24]
    This was a trial in which the evidence was relatively brief and the jury returned the guilty verdicts at the conclusion of the second day of the trial.  The evidence had concluded by 12.30 pm on the second day of the trial.  The appellant’s trial counsel addressed the jury for 20 minutes before lunch.  The prosecutor addressed the jury for 15 minutes after lunch.  It is relevant to consider the summing up in the context that the opening remarks made by the trial judge to the jury had only been heard by them at the commencement of the trial on the previous day.
25. [25]
    In the opening remarks, the trial judge had explained to the jury that they were to reach their decisions about the facts only on the basis of the evidence, that emotion was to play no part and they must ignore any feeling of sympathy or prejudice.  The trial judge had described their task in assessing a witness’ evidence, including taking into account how the witness gave evidence which was a reference to the demeanour of a witness:

“You should play close attention to the evidence as it’s being presented to you from the first witness to the last. You should play close attention to how each witness gives evidence, how a witness presents to you and how they respond to questioning, particularly in cross-examination, where their factual assertions may be tested or challenged, may help you to decide if that person is a truthful and reliable witness giving accurate evidence, or if you accept some of their evidence but not all of it, as you are entitled to do.”

26. [26]
    In the summing up, the trial judge gave the standard direction to the jury that they should dismiss all feelings of sympathy or prejudice as no such emotion had any part to play in their decision.  The trial judge also gave the standard direction about assessing the reliability and credibility of each witness.
27. [27]
    After referring to the cross-examination of the complainant about her motive to lie concerning the conduct of the appellant and the submissions that were made by the appellant’s trial counsel in the address to the jury in respect of the motive to lie, the trial judge summarised the appellant’s contention in that respect.  The trial judge then gave a lengthy and clear direction in relation to the evidence the jury had heard from witnesses as to their observations as to changes to the complainant’s demeanour, behaviour or attitudes from sometime after Australia Day 2020 that reflected the trial judge’s ruling given prior to the addresses:

“Now, the only potential relevance of evidence regarding her changes in behaviour, or demeanour or attitude from that stage really is, as the [appellant] has submitted through counsel, that it is said that that led on to her self-harming behaviour, and that that, in turn, led to the potential for a false complaint from her, as I have just referred you to, because she wanted to in some way assuage her parents’ distress, anger or frustration at her self-harming behaviour. Now, the Crown, of course, submit that you would reject that as a potential motivation to lie. That it is fanciful nonsense, is the Crown’s position. What you make of that evidence in that regard is a question of fact that you decide.

What you must not do, though, is to reason that, because there was a change in her behaviour, or attitudes or demeanour, if you find that is the case, post-Australia Day 2020, that such change is evidentiary support for the alleged offences. There is no expert evidence that has been placed before you in that regard, and to so reason would constitute pure speculation, something which I have already said to you is strictly prohibited. There may be many innocent explanations for such changes. For instance, there might be hormonal issues, psychological issues, hereditary issues, social issues, or to use the broad term, teenage issues, but you have not got any expert evidence at all about this.

So, if you reject the motive to lie put forward on behalf of the Defence, treat it in the way that I have already directed you. Just put it to one side. But you must not use the evidence of her changes in personality or behaviour in support of the Prosecution case. You simply go to the rest of the evidence and work out what evidence you accept. Now, having said all of that, I do not include in that direction the evidence that the complainant refused to visit or stay overnight at the [appellant’s] place at any stage post-Australia Day 2020, irrespective of where they were living at the time. The Crown submits that you would accept that evidence and conclude that it is supportive of the complainant’s credibility.

Independently, it does not prove anything, but it is evidence of behaviour consistent with her allegations and can be taken into account when assessing her credibility. The Defence say that you would place no weight on such evidence, as it can be explained for other reasons quite independent of the alleged improper behaviour of the [appellant], that is, that it was just one more manifestation of her changed behaviour, attitude, demeanour, and had nothing to do with the alleged offending conduct. Ultimately, though, it is a question of fact for your determination.”

28. [28]
    The trial judge identified for the jury that the real issue for their determination was whether they were “satisfied beyond reasonable doubt that the touchings, as identified and for each of these three charges, occurred as alleged”.
29. [29]
    The trial judge summarised the appellant’s contention at trial in relation to the relevance of the complainant’s self-harming:

“It was submitted to you by Defence counsel that you might suspect that the complainant was a troubled teenager, that maybe she is confused, or needs attention, or subject to flights of fancy or fabrication of things, and that that would cause you some concern, and she referred you to the evidence of the complainant having self-harmed, and the timing of her complaint to her parents, and that there was a motivation for her to lie for the reasons that I have already touched upon in the course of my summing up, and I will not repeat once again.”

30. [30]
    The trial judge summarised the contentious aspects of the prosecutor’s address to the jury by putting the prosecutor’s arguments shorn of the prosecutor’s emotive language:

“Crown counsel addressed you and said that the defendant took advantage of the complainant. She acknowledged that the Crown case rests on the complainant’s evidence. She reminded you that she was only 14 years old, that there is no set way for victims of sexual misconduct to react. It was submitted that the complainant gave clear, certain and genuine evidence, that there was nothing improbable about her evidence, there were no exaggerations, no hesitations, she gave precise evidence in a detailed way, the emotion that she displayed, you would accept was genuine, which supports her credibility, and that she gave honest and reliable evidence. It was submitted to you that her unwillingness to visit or stay over at the defendant’s place after these events is understandable and supportive of her credibility, and that any lack of earlier complaint is understandable in the circumstances, and consistent with her being a truthful witness.”

31. [31]
    It is of note that no objection had been taken at the trial by the appellant’s counsel to the prosecutor’s address and no request was made of the trial judge for a specific direction to deal with any part of the prosecutor’s address.

Did the prosecutor’s address to the jury cause a miscarriage of justice?

32. [32]
    Even though Libke v The Queen (2007) 230 CLR 559 was concerned with unfair conduct by a prosecutor in cross-examination of an accused person, it deals with the standard of conduct of a prosecutor and when the consequences result in a miscarriage of justice.  The court was divided in Libke as to whether the prosecutor’s comments in cross-examining the accused in that case which fell below the standard expected of a prosecutor resulted in the trial being unfair and thereby causing a miscarriage of justice.  The majority of Gleeson CJ, Hayne and Heydon JJ concluded (at [1]-[2], [81]-[83] and [134]) that the prosecutor’s alignment with the case that was put to the accused in cross-examination had not made the trial unfair.  Hayne J set out at [71] the standard expected of a prosecutor in a criminal trial.
33. [33]
    Even if aspects of a prosecutor’s address can be characterised as improper, it is only if the conduct has compromised the fairness of the trial that the conclusion can be reached that there has been a miscarriage of justice.  That was the outcome in R v Gathercole [2016] QCA 336 at [49]-[56] where a prosecutor’s address was found to be illogical and encouraging the jury to follow an impermissible path of reasoning that was not corrected in the trial judge’s summing up.
34. [34]
    The adjective “intemperate” that is used on this appeal to describe some of the prosecutor’s remarks is also found in some of the authorities where the prosecutor’s address to the jury has been scrutinised, such as R v Smith (2007) 179 A Crim R 453 at [38].  A conclusion that there were intemperate remarks is only the first step in determining whether there was resultant unfairness in the trial that caused a miscarriage of justice.
35. [35]
    The comments made by the prosecutor when commencing of the address to the jury (set out at [19] above) that fell within the appellant’s counsel’s first category of intemperate remarks were overly dramatic.  They did, however, reflect the essence of the prosecution case at trial that the appellant committed the offences in breach of the trust reposed in him by the complainant’s family when the complainant was left in the care of the appellant and his wife while the complainant’s parents were on a cruise.  The other comments in the first category of intemperate remarks that it was difficult for the complainant to be interviewed by the police and to give evidence and that she was brave to do so were gratuitous observations that tended to invite sympathy from the jury and would have been better omitted from the address.
36. [36]
    To the extent that the intemperate remarks in the first category were made by the prosecutor, they were addressed by the standard direction given by the trial judge that they should dismiss all feelings of sympathy or prejudice and were put in proper perspective by the clinical summary given by the trial judge in the summing up of the prosecutor’s contentions.
37. [37]
    In dealing with the second category of submissions made by the prosecutor at the trial, a distinction must be drawn between a permissible submission on the demeanour of the complainant in giving her evidence that was relevant to the jury’s assessment of the complainant’s reliability and credibility and submissions that were precluded as a result of the trial judge’s ruling.  It is also relevant to consider the importance that the timing of the complainant’s preliminary complaints made on 22 November 2020 to family members played in the trial.  As a result of the approach taken by the appellant’s trial counsel, the significance of the preliminary complaints being made on 22 November 2020 was integral to the argument advanced on behalf of the appellant that the complainant had a motive to lie about the allegations against the appellant, as she was looking for a reason to give to her parents for the self-harming incident that took place on the evening of the previous day.  It was therefore necessary for the prosecutor in her address to deal with the delay in the making of the preliminary complaints almost eleven months after the first incident and almost ten months after the second incident.  It was a permissible approach for the prosecutor to appeal to the common sense of the jury (in the passage set out at [21] above) that there is no one way that a child who has been sexually abused should act, as that was relevant to the delay that occurred before the making of the complaint.
38. [38]
    The description used by the prosecutor in the impugned passages of the complainant’s “real, raw, emotion” was a permissible comment about her demeanour when giving evidence.  The jury had been instructed to make observations about demeanour.  The demeanour of a witness in the course of giving evidence is part of the evidence itself which is before the jury and can be relevant in the assessment of credibility: R v Li (2003) 140 A Crim R 288 at [41]-[42].  The prosecutor commented on what the prosecutor had seen in the s 21AK pre-recorded evidence that was played to the jury and made the submission “that supports the truthfulness of what she says happened to her” which was another way of urging the jury to act on what they saw in the manner in which the complainant gave evidence to assess her credibility.  It was unfortunate that the prosecutor used the phrase “supports the truthfulness” rather than phrasing the submission in terms “that assists in assessing that she was being truthful”.  The following sentence in the submission clarified, however, that the intent of the submission was to assist in the jury’s assessment of the complainant’s credibility rather than to treat her demeanour as corroborative of her evidence.
39. [39]
    The lengthy passage that followed in the prosecutor’s address to the jury about the observations of the family members that the complainant was withdrawn in 2020 and “spiraling” was the prosecutor’s proposing an explanation for the delay in the making of the allegations by the complainant in response to the appellant’s trial counsel’s argument about the timing of the preliminary complaints and that the allegations against the appellant were a “flight of fancy” to deal with the complainant’s conflict with her parents over her self-harming.
40. [40]
    A close examination of the relevant parts of the prosecutor’s address (set out at [21]-[22] above) does not support the appellant’s submissions made on the appeal in respect of the second category of the prosecutor’s submissions that they were submissions on the complainant’s family members’ observations of the changes in the complainant’s behaviour which brought into issue a chain of reasoning that was said to corroborate the allegations of sexual abuse that was precluded by the trial judge’s ruling.
41. [41]
    In view of the approaches taken on behalf of the appellant and the prosecution respectively at the trial, it is not surprising that the appellant’s trial counsel did not seek any directions from the trial judge to dilute the effect of the prosecutor’s arguments or language.  That is significant, as it does not suggest that the appellant’s trial counsel during the trial considered the fairness of the trial had been compromised by the prosecutor’s address.
42. [42]
    In the circumstances of this trial, to the extent that the prosecutor’s remarks were overly dramatic and may have had the effect of appealing to the feelings of sympathy of the jury, there was no resultant unfairness, as a result of the summing up by the trial judge.  The appellant does not succeed in showing a miscarriage of justice in reliance on the third ground of appeal.

Order

43. [43]
    The order I propose is: Appeal dismissed.

LIVESEY AJA:

Appeal grounds 1 and 2

44. [44]
    By these grounds the appellant contends that the trial judge erred in failing to grant a mistrial or, alternatively, the failure to grant a mistrial entailed a miscarriage of justice where the prosecution failed to admit at trial that the complainant had not made a complaint of sexual misconduct by the appellant, when she spoke with her school counsellor between 22 November and 8 December 2020.  Associated with this is the further complaint that the failure by the trial judge to re-open the application concerning access to that communication entailed a miscarriage of justice.
45. [45]
    Pursuant to s 14A(1) of the Evidence Act 1977 (Qld) (the Evidence Act), a communication made by a “counselled person” to a counsellor is deemed to be a “protected counselling communication”, as is a record of that communication.^[1]  Other than with leave, no-one may compel, whether by subpoena or otherwise, another to produce a protected counselling communication to the court, or otherwise disclose, inspect or copy that communication.^[2]
46. [46]
    A party to a proceeding may apply for leave to do the things otherwise prohibited and, in determining that application, the court must apply the criteria set out in s 14H(1) of the Evidence Act.
47. [47]
    In this case, the complainant disclosed her allegations of the appellant’s offending to her family on or about 22 November 2020.
48. [48]
    Contact was soon made with police and a video recording of the complainant’s statement to police on 8 December 2020 formed part of her evidence pursuant to s 93A of the Evidence Act.
49. [49]
    In the course of her statement, the complainant told police that she had been seeing a psychologist and psychiatrist for some time.  The complainant said that she had also been seeing her school counsellor.  On one view of her statement, the complainant told police that she had disclosed her allegations about the appellant’s sexual misconduct towards her to the school counsellor.  She did not say that she had disclosed her allegations to her psychiatrist.
50. [50]
    The appellant’s lawyers applied for access to any protected counselling communication made by the complainant to her psychiatrist and school counsellor, but not her psychologist.  By a ruling made in the District Court on 19 September 2022 that application was dismissed because the judge held that much of the material was not of “substantial probative value”.  The District Court judge observed that it was common ground that the notes did not record any complaint of sexual allegations from the complainant before 8 December 2020.  As the complainant had only said that she had made a disclosure to the school counsellor, only that purported disclosure was in issue.
51. [51]
    The complainant’s evidence was pre-recorded pursuant to s 21AK of the Evidence Act on 21 September 2022 and, in the course of that evidence, the complainant adopted and endorsed her s 93A video recording.
52. [52]
    The complainant was cross-examined about the disclosure that she said she had made to the school counsellor.  The effect of her evidence was that she told her counsellor of her allegations after she had told her family, but before she had told police.  The cross-examiner put to the complainant that she did not say anything to the school counsellor before she spoke to police, to which the complainant said that she spoke to the counsellor two days after she had told her family.
53. [53]
    Later, at the start of the trial in this matter, the then counsel for the appellant told the trial judge that the prosecution and the defence were in dispute about the outcome of the hearing concerning the protected counselling communications.  Counsel for the appellant told the trial judge that there was a significant issue about the complainant’s credibility and reliability because there was no record of any complaint having been made to the school counsellor.  In response, the prosecutor described the effect of the complainant’s evidence.  The prosecutor said that the counsellor had a progress note disclosing an attendance on 24 November 2020 but that it did not contain any note of any sexual allegation.
54. [54]
    Although counsel for the appellant sought an admission that the complainant did not say anything about her sexual allegations to the school counsellor, the prosecutor was not willing to make that admission.  The trial judge then said to counsel for the appellant that if the Crown was not prepared to make the requested admission, there was nothing that the court could do and it was a matter for the parties to “try and sort out amongst themselves”.
55. [55]
    It was at that stage that counsel applied for a mistrial on the basis that the cross‑examination before trial had been conducted on the basis that no complaint had been made by the complainant to her psychiatrist or the school counsellor before she spoke with police on 8 December 2020.  During the course of the submissions made on that application, the trial judge pointed out that the most that could be admitted by the Crown was that there was no record of any complaint.
56. [56]
    Although counsel asked to re-open the application for access to the protected counselling communications which had been dismissed on 19 September 2022, that does not appear to have been pursued. 
57. [57]
    In argument before this Court, the appellant emphasised that the trial judge suggested during the course of argument that the appellant’s lawyers could have made contact with the counsellor, and that this was wrong in law.  Whilst that proposition may be accepted, the question for this Court is whether a miscarriage of justice has been demonstrated.
58. [58]
    The essence of the complaint made on appeal is that the trial was rendered unfair because the prosecution failed to make an admission in the terms which former counsel for the appellant had assumed it would be made, namely, that the complainant had made no complaint of sexual misconduct to her psychiatrist or school counsellor before she spoke with police on 8 December 2020.  This, it was argued, represented a failure by the prosecution to act with fairness.^[3]
59. [59]
    Respectfully, there is no basis for the criticism.  As might be obvious, the absence of a note of a complaint does not necessarily mean that no complaint had been made.  The absence of a record cannot be conflated with the absence of a complaint.
60. [60]
    It is pertinent to observe that the defence did not ever seek an admission that there was no record of a complaint, as distinct from that there had been no complaint.  Whatever assumption might have been made by counsel for the appellant at the trial, the material available to this Court does not demonstrate that an admission should have been made in the terms in which it was sought, or that the prosecution acted other than with fairness and propriety on this issue.
61. [61]
    In these circumstances, it has not been demonstrated that the trial judge made any material error or that a proper basis for a mistrial has been disclosed.

Conclusion

62. [62]
    Appeal grounds 1 and 2 should be dismissed.
63. [63]
    I agree with the President, for the reasons that she gives, that appeal ground 3 should be dismissed.
64. [64]
    CALLAGHAN J:  The appellant was convicted on three counts of indecent treatment of a child (“A”), who was both under the age of 16 and under his care. He was sentenced to imprisonment for a period of 15 months with parole eligibility set after half of that period had been served.  He does not challenge that sentence, but appeals against his conviction on three separate grounds.

The first complaint by A

65. [65]
    The complainant is the youngest of four siblings in a close family.^[4]  In November 2020 she was 14 years old.^[5]  On 21 November, and not for the first time, she caused some harm to herself.  Her family was concerned and angry.
66. [66]
    Following that incident, on 22 November the complainant had a conversation with her brother's partner and made revelations about the actions of the appellant, who was A’s sister’s husband.  Further disclosures followed to other family members.  In all, four family members gave evidence about these disclosures.  There were some variations as between their accounts, but all were received properly as evidence of preliminary complaint.

A’s evidence – s 93A recording

67. [67]
    Police were contacted and on 8 December 2020, the complainant was interviewed; the recording became evidence pursuant to s 93A of the Evidence Act 1977 (Qld) (“the Act”).
68. [68]
    In this interview, the complainant told police that at the end of 2019 she was living with her parents, who took a cruise which left on Boxing Day.  A “roster” was arranged for her care while they were away.  For the first two nights, she was scheduled to stay with her sister (“X”) and X’s husband, the appellant.
69. [69]
    The complainant said that on Boxing Day evening she was lying with her sister and the appellant on the bed that was shared by the couple.  The complainant said that she and the appellant were on their phones when her sister fell asleep.  The appellant then started to rub her thigh and moved his hand to touch her on the vagina (“count 1”).
70. [70]
    The complainant got up and moved to a couch where she was joined by the appellant who “put on a movie”.  He then started rubbing her back and moved his hand such that he was “lightly touching”^[6] the complainant’s “butt”.  She pretended to be asleep and he again moved his hand to a point where it was touching her vagina (“count 2”).^[7]  When the movie was over the appellant woke the complainant from her (feigned) sleep and went to bed.
71. [71]
    Although scheduled to sleep over again on the next night, the complainant left the appellant's house and did not return to stay there whilst her parents were away.  Indeed, she said that after this incident she avoided going to the couple’s house at all.^[8]
72. [72]
    However, about one month later, on the evening before Australia day, X asked the complainant to come over to help her make some treats for a family gathering the next day.  The complainant said that on this occasion “the exact same thing happened”.^[9]  Whilst she was on the couch, the appellant turned off the lights, put a movie on and proceeded to touch her.  She said that she kept her legs crossed so that he could not touch her vagina, but he moved his hand up and was “lightly touching (her) breast”^[10] throughout the movie (“count 3”).
73. [73]
    No evidence was given of anything being said by either party during or after either incident.  All of the touching was alleged to have occurred on the outside of the complainant's clothing.^[11]
74. [74]
    The complainant’s conversation with police included this evidence:

“POLICE: Okay. Um, and so since that, that time ah, everything’s happened on Australia day and um, and you told everybody, what um, has it happened aga-, have you told anybody else since?

COMPLAINANT: No.

POLICE: No? Um, have you been to any counselling or anything like that who--

COMPLAINANT: Oh, yeah. Um--

POLICE: Yep.

COMPLAINANT: I've been seeing a psychologist and psychiatrist for, I think the middle of the year, because I've been struggling mentally a lot on this year. Um, and I see my school counsellor and um, she was, I told her um, and she, I see her like, every day because I struggle to go to classes um, 'cause I just have panic attacks. So, she, we just basically um, talk about what I think I can do today and if I think I can't do a subject, I stay with her.

POLICE: Okay, yep.

COMPLAINANT: So, yeah I told her. And I’ve told my psychologist.”

75. [75]
    The meaning of the conversation was probably clear to the participants, although when the words are scrutinised closely it is possible to contend for different interpretations.  However, for the purposes of considering these grounds, let it be assumed that a jury could conclude from this exchange that the complainant was asserting that she had, after 22 November but prior to this conversation with police (on 8 December 2020), spoken about the appellant’s offending to a psychologist and a counsellor at her school.

Pre-trial

76. [76]
    The complainant was, therefore, a “counselled person” within the meaning of the Act.  Communication made in confidence by her to a counsellor is deemed to be “protected counselling communication” (“PCC”).^[12]  A record of such communication would also be PCC.^[13]
77. [77]
    Other than with leave of the court a person cannot compel, whether by subpoena or otherwise, another person to produce a PCC to a court, or otherwise disclose, inspect or copy a PCC.^[14]
78. [78]
    A party to a proceeding can, however, apply for leave to do any of the things otherwise prohibited by the Act.^[15]  The court deciding the application must apply the criteria set out in s 14H(1) of the Act.^[16]
79. [79]
    The appellant’s legal representatives did make an application to gain access to records of the complainant’s communications with the counsellor and psychiatrist.^[17]  The application was largely unsuccessful on the basis that the learned presiding judge determined that much of the material was not “of substantial probative value”.^[18]  However, after ruling in that way his Honour Judge Smith DCJA observed:

“The other aspect … is that it's common ground from the counselled person that the notes don't record any complaint of the sexual allegations to [the psychiatrist] prior to 8 December 2020 but there are afterwards… And similarly, there is no evidence of any complaint directly by the complainant to the school prior to 8 December 2020…”

Pre-recorded evidence

80. [80]
    The complainant’s evidence was pre-recorded pursuant to s 21AK of the Act. She adopted and endorsed the contents of her statements to the police.  There followed cross-examination about her version of events, the process of disclosure to others.  Of particular concern was the issue of disclosure to the school counsellor:

“All right. And, A, you didn’t tell your school counsellor anything about what had happened with [the appellant], did you?---I did.

You had been seeing a school counsellor or a counsellor at the school for quite some time?---Yep.

Is that from when you started high school?---No. I saw her when I started self-harming which was after the incident had happened.

All right. And were you also seeing Megan Richardson?---Yeah.

And she’s someone who wasn’t at the school?---Yep.

She was a psychologist or a psychiatrist?---Psychiatrist.

Yep. And you didn’t tell her anything about [the appellant] doing anything to you?---Not until I told my family.

Okay. And you told the police though, didn’t you, that you had told your psychologist?---My psychiatrist or my psychologist.

You were seeing Megan Richardson?---Yes.

Were you seeing somebody else?---I saw a psychologist, a psychiatrist, and a counsellor at my school.

All right. And when did you tell - you said you told Megan Richardson after you told your family?---Yes.

When was that?---I can’t remember when exactly.

Okay. It wasn’t - you didn’t tell her in between telling your family - or I’ll ask it this way: did you say anything to the psychiatrist before you told the police?---I can’t remember if my appointment was before or after I did the statement. I don’t know.

All right. Because there was - you told your family on the 22^nd of November and you went to the police on the 8^th of December; is that right?---I probably did tell my psychiatrist then.

Okay. And you remember telling the prosecutor James yesterday that you had told your psychiatrist, was it, in between the police and - sorry, in between telling your family and the police?---I spoke about James - I spoke to James about telling my counsellor about it.

Okay. All right?---Because she’s the only person I went into detail with.

Okay. And which counsellor was that? When you say counsellor, that’s the school?---Yes.

Okay. And I’m suggesting that you didn’t say anything to the school counsellor before you had spoken to the police on the 8^th of December?---I spoke to her two days after I had told my family.”^[19]

81. [81]
    It is possible, by reference to the emphasised passage, to infer that Defence counsel was attempting to lay the groundwork for that which she intended would follow. It was anticipated that the Crown would make an admission in terms of the conclusion expressed by Judge Smith.  This would have laid the foundation for a submission that the complainant had been inconsistent when reporting about those to whom she had made a complaint, and when she had done it.  That is, whilst the effect of her evidence was that she told her school counsellor after she told her family but before she spoke to the police, the effect of the anticipated admission would have established that there was no record of any such conversation.

Other evidence

82. [82]
    A large body of evidence concerned the complainant’s behaviour between the alleged offending and the disclosures of November 2020.  It demonstrated that during this period she was concerned to avoid any contact with the appellant,^[20] and that she was engaging in self-harm.
83. [83]
    The appellant^[21] gave evidence in which he accepted that the complainant had been in his house at the relevant times.  He recalled that acts of self harm had occurred in early 2019.^[22]  He denied any wrongdoing.

Grounds 1 and 2

84. [84]
    These grounds must be considered together:

    1. (a)
       Ground one – the learned trial judge erred at law in failing to grant the application for a mistrial, or in the alternative, the failure to grant the application was a miscarriage of justice.
    2. (b)
       Ground two – A miscarriage of justice was occasioned by the failure to re-open the pre-trial protected counselling communication application.
85. [85]
    At the outset of the trial, Defence counsel informed the learned trial judge that there was dispute between the Crown and Defence as to the outcome of the hearing about protected counselling conversations:

“DEFENCE COUNSEL:… The way it’s relevant to this case is that the complainant says that she told the guidance officer and there is no record of her doing that.

HIS HONOUR: Right.

DEFENCE COUNSEL: And obviously that is a significant issue in terms of her credibility and reliability. And I understand that the Crown’s position is that she did make that complaint to the guidance officer.

HIS HONOUR: Right. And is it suggested that there is a notation to that effect that she did?

CROWN PROSECUTOR: Your Honour, if I can assist. Essentially, in her section 93A statement, she indicated that she made a – a complaint to the counsellor before telling police. This hearing, in relation to the PCC, occurred prior to the 21AK. During that 21AK, it was put to her that she didn’t tell her counsellor before disclosing the matter to police. She said that she did speak to her counsellor and, in fact, she spoke to her counsellor two days after she made the disclosure to her family, which would place it at the 24^th of November of 2020.

There is a record in the counsellor’s – or the progress notes that indicates that the complainant had a conversation with the counsellor on the 24^th of November… So the Crown case would be it is – that it was had on the 24^th of November. It’s redacted because it’s been the subject of PCC. The issue at hand is that, at the conclusion of the hearing, Judge Smith said there was no direct detail, in my understanding, in the notes of a complaint made by the complainant. But it’s my submission that perhaps it is the case that there was no direct complaint that would constitute preliminary complaint at law, but it can’t be said that there wasn’t perhaps a mention by the complainant that something did, in fact, happen, but it just doesn’t constitute preliminary complaint; and therefore, for that reason, I was not willing to make an admission that the complainant did not tell the guidance counsellor of what happened to her.

HIS HONOUR: All right……..You want a – you’re seeking an admission to that effect, are you?

DEFENCE COUNSEL: I am, your Honour. Yes.

HIS HONOUR: But if the Crown’s not prepared to make the admission, what is it that you think the court can do?..... I don’t know that there’s anything the court can do….. It sounds like whatever it is, is a matter for the parties to try and sort out amongst themselves.”

86. [86]
    The parties could not sort the matter out.
87. [87]
    As a result, Defence counsel applied for a mistrial on the basis that, “cross-examination of the complainant was run on the basis that the complainant did not make a complaint to either her psychiatrist, Dr Richardson, or the school counsellor prior to her formal statement to police, on the 8^th of December 2020”.^[23]  That much is clear – at least in relation to the counsellor – from the question highlighted in [80], above.
88. [88]
    His Honour reminded the parties that, “Judge Smith has placed on the record that the records don’t reveal that there was a record of complaint made prior to the 8^th of December 2020”,^[24] after which Defence counsel then betrayed a misapprehension as to the effect of Judge Smith’s conclusion.  She expressed her belief that “because of those statements, (the Crown) would make an admission that there had been no complaint”.^[25]
89. [89]
    However, as pointed out by his Honour the learned trial judge, “The most that the admission could be would be that no record was made of any such complaint”.  Experience might suggest that, as Defence counsel submitted, “the circumstances of the disclosure if it was made and the nature of the disclosure if it was made, are such that there would be a record”.  That proposition was not, however, established as it might have been if there was evidence to the effect that the practice of recording such information was invariable.
90. [90]
    Perhaps with an eye to establishing just that, Defence counsel also asked for the PCC decision to be reopened.^[26]  However, no mechanism for the reopening was proposed and its precise purpose was not made clear.
91. [91]
    There were further exchanges, including a passage in which the learned trial judge suggested that the appellant’s legal representatives could have made inquiries with the counsellor.  That had not occurred, and in the result the applications were refused.
92. [92]
    The appellant complains that to the extent that his Honour’s ruling was influenced by his view that the appellant’s legal representatives could have contacted the counsellor, his Honour was in error.  It is submitted by Ms Farnden KC that:

“In observing a conference with the witness should have taken place, the Court was suggesting a discussion with the witness to confirm whether a complaint of sexual offending was made to the counsellor in the course of a counselling session prior to 8 December 2020. Any information the counsellor could have provided in response to these enquires would have been protected by qualified privilege.

At law, any written or oral communication by a counselled person to a counsellor, or by a counsellor to or about a counselled person to further the counselling process, is a protected counselling communication. The communication includes any document or evidence to the extent it discloses a protected counselling communication.

In terms of dealing with the communication, a person is not able to seek to produce to a court, adduce evidence of, or otherwise use a protected counselling communication in connection with a proceeding. That is say, the parties were prohibited at law from approaching the school counsellor for the purpose of discussing any communication which occurred within a counselling session.

The Court was wrong to place weight on this observation, as the parties were not able to conference the school counsellor or psychologist about the content of any conversation they may have had with the complainant.”^[27]

93. [93]
    That much of the appellant’s argument should be accepted.  That does not, however, mean it was wrong to refuse the applications.
94. [94]
    Defence counsel did not press for the admission that could have been made and that would have allowed her at least to address the jury about the tension between the complainant’s assertion about the timing of disclosure to the counsellor and the absence of any record about it.  Nor was there an application for a stay of proceedings until such admission was made.
95. [95]
    In the circumstances, the Crown was not obliged to do more than make an admission in the terms articulated by Judge Smith, but if requested, that should have been made.  It was recognised in Dyers v The Queen^[28] that:

“As has been pointed out in several decisions of this Court, a basic requirement of the adversary system of criminal justice is that the prosecution, representing the State, must act “with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one”.” (footnotes removed).

96. [96]
    The making of such an admission would not, however, have demonstrated “inconsistency” as such.  It revealed an anomaly that gave rise to a bare forensic point.  It was open to submit that the complainant had made an assertion about something of which it might be thought there should be a record, but there was not.
97. [97]
    As faint as it may have been, in a case where the credibility of a witness was so important, the appellant was entitled to explore every argument fairly open to him and this was one of them, and the opportunity to make it was foreclosed by the absence of an admission in terms of Judge Smith’s conclusion.
98. [98]
    None of this means there was any error by the trial judge, who could only rule on the issues raised on the materials before him.  No basis was established on which to reopen the PCC decision.  The Crown’s refusal to make an admission did not mean that there was anything flawed about the process undertaken by Judge Smith.  The limits to its relevance were clear in advance of the trial, as were the (limited) options available to deal with the situation left by it.
99. [99]
    Nor was there a basis for a mistrial.  On the materials available to the court the point was never going to go as far as Defence counsel apparently thought it might.  His Honour identified the limit to which it could be taken and Defence counsel did not pursue the means by which that could be achieved.  In any case, the point would inevitably have been met with some predictable responses during the Crown address.  An obvious one was identified by his Honour - namely that absence of a record does not mean absence of complaint.^[29]
100. [100]
     Further, the terms of the complainant’s evidence (see [81], above) leave open the question of whether that which was told to a counsellor might have been relevant to feelings that she was experiencing as a result of the offending, rather than about the offending or the offender himself.  The longer such arguments went, the further they would have strayed from the issues which were to make meaningful impact on a jury.
101. [101]
     On the basis of the materials and submissions that were before him, his Honour made no wrong decision about any question of law.  There was no evidence – either at trial or on appeal – that might have brought into focus an argument with any real persuasive value.  The prospect of a miscarriage of justice remains speculative.  Grounds 1 and 2 must be dismissed.

Ground 3 – the Crown’s final address

102. [102]
     The Crown prosecutor’s closing address included the following:

“The defendant was A’s brother-in-law. He was a trusted family member. He was part of their innermost circle. They loved him. He betrayed them. He betrayed A. He was supposed to protect her. He was supposed to care for her, and he was supposed to look after her. Instead, he violated her. He took advantage of a young child when there was no one in a state to protect her, when there was no one who could assist her. ---

So focus on her evidence. Focus on what she told police. Focus on what she told the court. focus on her actions, on her demeanour and her real and her raw emotion. ---

A was 14 years old when she told police what the defendant did to her. Almost two years later, she gave evidence in the courtroom. She was required to relive what the defendant did to her on both occasions. That in itself, ladies and gentlemen, is difficult, but A was brave. She was strong, and she told both police and the court exactly what she endured at the hands of the defendant. ---

Importantly, ladies and gentlemen, in her interview with police, when asked to describe the defendant, she broke down. She broke down in tears. What you saw was real, raw, emotion. It was a real reaction from a child who has experienced terrible abuse from a trusted family member. That raw emotion she experienced was because these things happened to her. In her evidence in court, you saw A break down on multiple occasions. She became visibly upset. She was distraught, devastated, frustrated at the suggestion that these things did not happen to her. It was an affront to her that anyone could ever suggest that, and it significantly affected her. It deeply upset her. Again, that supports the truthfulness of what she says happened to her. Her passion and her emotion suggest that you should all accept that she is an honest and a reliable witness. You heard evidence from A that she refused to sleep over at the defendant and X’s house after he did this to her. She did not want to go to their house in K and later their house in L. This is precisely the kind of behaviour you would expect from someone who has been sexually abused. This supports her evidence. You have heard evidence during this trial that A commenced self-harming as a result of what the defendant did to her. She said in her cross-examination, pages 1 to 12, line 37 to 39 in the record:

The first time I self-harmed was after the whole incident happened. That’s when I started, and that’s the year I started counselling, and that’s the year I started being suicidal.

The defence put to A that her mental health declined in 2019, but clearly A suggests otherwise. Additionally, her mother, her dad, and her sister all gave evidence that it was 2020 they noticed a change in her behaviour. It was 2020 they became aware that she was self-harming. It was 2020 that A was no longer the happy girl that she used to be. She was withdrawn. She reluctantly came out of her bedroom when the family was over. She said she did not want to be around anyone. She said it would be easier if she was not around. She started spiraling. She did not want to be in front of people. You heard that evidence, ladies and gentlemen, from her mum. You may be wondering to yourself why didn’t A tell anyone sooner. …She told you she was scared. Sadly, A had to deal with this by herself for a very long time…

Focus on what she told police and what she said in court, and the certainty at which she said that. Focus on her real and raw emotions, ladies and gentlemen. The defendant is guilty. Thank you.^[30]

103. [103]
     The challenges faced by any witness in the complainant’s position must be acknowledged.  Fortunately, much progress has been made, both legally and practically, with a view to minimising the trauma involved.  Emotional reactions of the kind described are, however, to be expected.
104. [104]
     There is nothing new about the concerns raised in this context.  As Gibbs CJ recognised in De Jesus v the Queen^[31] “Sexual cases… are peculiarly likely to arouse prejudice, against which a direction to the jury is unlikely to guard”.
105. [105]
     In R v M,^[32] Cooper J observed that:

“The natural inclination of adults to protect and nurture their children gives rise to strong emotions where proven cases of sexual interference with children come to light. Often there are no witnesses other than the parties involved and the evidence consists of allegations and denials and nothing more.”^[33]

106. [106]
     It follows, that:

“In cases of this type prosecuting counsel are required to be particularly vigilant not to do anything which appeals to the prejudice or sympathy of the jury where such emotions are so easily aroused.”^[34]

107. [107]
     It should not be suggested that a Crown prosecutor, when addressing a jury, should “do little except talk of reasonable doubt and leave the final speech on the facts to the judge”.^[35]  In some circumstances a jury might be reminded about the difficulties experienced by complainants.  This may be necessary in order to explain particular aspects of the evidence.  A common example might be a case in which a jury is addressed about the way in which a very young child has expressed themselves.  A jury might, in such a case, be asked to bring their life experience to bear – albeit whilst suppressing those “natural instincts” – when assessing the witness’s credibility, make rational allowance for factors such as age and trauma.
108. [108]
     In this case the address went much further than that.  The passages cited demonstrate that, far from heeding the demand for restraint, the Crown Prosecutor:^[36]

     1. (i)
        asked the jury to focus on the difficulty that the complainant faced in twice having to relay her account, the sadness of having to deal with her situation by herself, and to give her credit for being “brave” and “strong”;
     2. (ii)
        emphasised the fact (relevant to sentence but not to proof) that the formerly “loved and trusted” appellant had “betrayed” not just the complainant, but her family – four of whom had been seen and heard by the jury;
     3. (iii)
        repeatedly implored the jury to consider the complainant’s “emotions’;
     4. (iv)
        invited the jury to reason that the “raw emotion” displayed by the complainant to the police was present “because” the offences had occurred; and
     5. (v)
        asserted that the complainant’s distress in Court “support(ed) the truthfulness of what she says happened to her”.
109. [109]
     The reference to the difficulties experienced by the complainant was gratuitous and unnecessary.  They were, however, likely to appeal to the emotions of the jury.  The jury should have been asked to focus on honesty and reliability, not on strength and bravery.
110. [110]
     Similarly, whilst it was relevant to prove that the appellant had the complainant in his care at the time of the offending, there was no forensic relevance to the fact that, by his offending, he had betrayed the trust of a close and loving family.  In circumstances where the concerned parents of the complainant had been seen and heard by the jury, this amounted to a direct appeal to the “strong emotions” that adults feel as a result of their inclination to nurture.
111. [111]
     At this point it can be noted that the jury did receive a standard instruction from the trial judge that they should dismiss all feelings of sympathy or prejudice, since no such emotion had any part to play in their decision.  There was no application for any addition to this direction, which was directed at limiting the influence of the jurors’ own emotions, and did not address the use that might be made of the emotions exhibited by the complainant.
112. [112]
     There is, in any event, a limit to the effectiveness with which a judge can deal with issues such as this.^[37] An air of unreality would have attended a direction which reminded the jury that their attention was drawn (repeatedly) to the upsetting spectacle of the complainant’s emotion and went on to demand they should disregard it.^[38]  The course taken by the Crown Prosecutor wedged Defence counsel into an impossible position, where either action or inaction may have disadvantaged her client.
113. [113]
     Even if it was allowed that the direction that was given might have had some indirect effect, there was no direction given, and no coming back from the irregularity involved in the invitation to use the complainant’s emotions - the existence of which was emphasised five times - as part of the process by which the charges might be proved.  It was not open to make the causal link (“because”) between them and the offending.
114. [114]
     The situation must be distinguished from the sort of case in which it has been held that the distressed condition of a complainant is capable of being considered as evidence that a crime has been committed, or that the accused had committed it.  Even then, an attempt to use such evidence in this way will usually be accompanied by a warning about the need to consider alternative explanations for the distress - see R v Rutherford [2004] QCA 481.
115. [115]
     That principle does not extend to distress of the complainant at the time of giving evidence.  The passage of time and, the existence of alternative explanations will make it impossible to identify, meaningfully, the reasons for distress.
116. [116]
     That is why it was not open to tell the jury that the complainant’s emotions were something which “supported” the complainant’s truthfulness.  It might have been open to draw attention to the complainant’s distress in the course of explaining to the jury that their assessment of her demeanour might be relevant to their conclusion about her honesty and reliability.  Between such a submission and the one that was made the distinction may be subtle, but trials like this may be so finely balanced that it is necessary to insist that it should be maintained.  That very distinction is the essence of the standard directions that are (and were) given on the topic of preliminary complaint.  It is to be assumed that juries appreciate and understand the difference.  It was therefore not open to put to the jury, as “a statement of fact”, the proposition that the complainant’s distressed condition offered some “support” of the complainant’s evidence.  There was no independent support of the complainant’s evidence,^[39] and certainly none to be found in the complainant’s demeanour.
117. [117]
     Again, there was no request for a particular direction about these assertions.  However, even if the mischief was not recognised by the judge and by counsel, it cannot be assumed that it had no effect.  This trial, like most of its kind, posed challenges for the jury.  They were provided with diametrically opposed bodies of evidence given almost two years apart by individuals of disparate age.  Although conveniently described as a case that was “word against word”, the task facing the jury was to decide whether the complainant was an honest and reliable witness.  Her evidence was directly contradicted by the appellant's, but there was no commensurable standard against which their evidence could be measured.
118. [118]
     In these circumstances, the Crown prosecutor’s submissions had a dangerously seductive quality.  It would be easy, when set such a task, for a jury to fasten onto any method that appeared to be more scientific than an instruction to use their common sense and experience.
119. [119]
     The fact remains, however, that trials like this are uniquely suited to resolution by jury following that precise instruction.  To be led away from it by appeals to emotion and sympathy was dangerous enough, but the invocation of forbidden forms of reasoning, such as the aforementioned “causal link”, tainted the process in a way that is unacceptable.  It offered resolution where there might have been doubt.
120. [120]
     No directions countered this possibility.  The effect of that omission was to leave intact the trial judge’s instruction that the arguments of counsel were things that the jury “may properly take into account when evaluating the evidence” allowing that the extent to which they did so was entirely a matter for them.^[40]  There is no basis for concluding that the jury did otherwise.  If that is so, then it has to be allowed that they may have accepted invitations from the Crown prosecutor and followed impermissible lines of reasoning towards their conclusion about the appellant’s guilt.

Conclusion

121. [121]
     The appeals to emotion and suggestion of a facile but false course of reasoning created a serious irregularity in the trial, with the result that there has been a miscarriage of justice.
122. [122]
     To the extent that such things can be assessed in an appeal, the complainant’s evidence was apparently credible.  Indeed, her pre-recorded evidence was taken in front of a judge who has much experience in this type of case, and who was moved to observe that the complainant was a “very compelling witness”.^[41]  However, it is not open to apply the proviso, particularly when the appellant testified to his innocence. It is at least the case that the complainant’s evidence has been recorded, and so there is no need for her to testify again.  The same cannot be said for the other members of her family, upon whom the case has had, according to material tendered on the sentence, a severe effect.  As a matter of law, however, those matters cannot preclude the need for a retrial.
123. [123]
     Since, however, my view is a minority one, there is no purpose in proposing any orders.