R v PBL[2023] QCA 16

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  On 21 October 2021, the appellant was found guilty by a jury after trial in the District Court of three counts of indecent treatment of a child X who was under 16, under care (domestic violence offence) (counts 1, 3 and 4) and one count of indecent treatment of a child Y who was under 16, under 12, under care (domestic violence offence) (count 2).  Count 1 was particularised as having been committed in March 2020.  Count 2 was particularised as being committed on a date between 29 June and 11 July 2020.  Each of counts 3 and 4 was particularised as being committed on Friday 10 July 2020.  The complainants, X and Y, are two daughters of the appellant’s then partner (the mother).  X was born in the beginning of 2008 and Y was born at the end of 2011.  X was therefore 12 years old at the time of the offending and Y was eight years old at the date particularised for count 2.
2. [2]
   The appellant appeals his conviction on the ground that the trial miscarried, as the appellant’s case was not adequately put to prosecution witnesses by his trial counsel who was not the same counsel who appears for him on the appeal.  The ground of appeal is confined to the miscarriage said to be caused by the failure of the appellant’s trial counsel to put the appellant’s specific instructions on the following matters to the relevant witnesses (to which I will refer respectively as “matters (a), (b) and (c)”):

   1. (a)
      that X did not like being disciplined and was angry at having been scolded by PBL and wanted to get “revenge”;
   2. (b)
      the girls had been encouraged or manipulated by their father to make false complaints; and
   3. (c)
      the mother was in a position to see the appellant kissing X and saw the appellant kissing X on the forehead.
3. [3]
   It is implicit in the ground of appeal, and consistent with how the ground was argued on the appeal, that the appellant’s trial counsel was obliged to put the appellant’s instructions on those matters to the relevant witnesses on the basis they were relevant aspects of the appellant’s case.  That implicit assumption as to the obligation of the appellant’s trial counsel in relation to those matters is challenged by the respondent.
4. [4]
   On the hearing of the appeal, leave was given to the appellant to rely on his affidavit affirmed on 12 October 2022 and the affidavit of Ms Kurz sworn on 19 October 2022.  Leave was given to the respondent to rely on the affidavit of Ms Gillies sworn on 7 November 2022.  No witnesses were cross-examined during the hearing of the appeal.

Background facts

5. [5]
   When the offending was alleged to have been committed, the appellant was in a relationship with the mother.  They did not live together, but the appellant would stay overnight on his days off work and also stay at the mother’s home during his holidays.  The mother resided with her five children.  Apart from X and Y, there was an older daughter Z who was 19 years old and two young sons A and B aged seven years and three years respectively at the date of the offences.

Summary of the evidence at the trial

6. [6]
   X’s s 93A interview with the police was recorded on the morning of 11 July 2020.  It included the following.  In 2020, she had caught the appellant in her bedroom at least five times.  On 10 July 2020, X felt the appellant touch her private parts.  X was “fake sleeping” when the appellant told B to be quiet and gave him a packet of Pringles.  The appellant was beside X’s bed and he felt her chest and her private parts.  He was using one hand to rub her nipples (count 3).  When he was touching her there, she moved her body to the side.  He rubbed her vagina over the top of her shorts and undies (count 4).  B had slept with X that night.  She did not see the appellant give B the packet of Pringles, and why otherwise would B have a packet of Pringles.  B was next to X in the bed and the appellant made B sit down so the appellant could reach for X.  The touching went on for about 10 minutes.
7. [7]
   X told Z what had happened.  The touching on 10 July 2020 was not the first time.  On a previous occasion, X felt the appellant’s touching her vagina on the outside of her clothes (count 1).  She did not tell Z at the time that happened, because she thought she was dreaming.  She can remember on that occasion he was rubbing her vagina in a circular motion and she felt him and woke straight away.
8. [8]
   On another occasion in the previous year, X felt the appellant’s kissing her on the lips.  When she told the mother and Z about that the next day after school, the mother said she was there the whole time and the appellant never kissed her.  X had not seen the mother in the doorway when she woke up.  X could not remember when the appellant first touched her vagina and thought it was “maybe around March 2020”.
9. [9]
   There was another occasion when X was home alone with the appellant and she asked him if he could cut her hair.  The appellant was standing behind her and touching her on her thighs and belly in a circular motion.  She felt uncomfortable.  She took his hands off her and went to find scissors.  The appellant cut her hair when the mother returned.
10. [10]
    X was cross-examined in accordance with s 21AK of the Evidence Act 1977 (Qld) which took place on 18 June 2021.  The cross-examination included the following evidence.  X slept in queen-sized bed in her own bedroom.  She usually shared the bedroom with B and sometimes A would also stay in her room and they would all sleep in the one bed.  For the incident of March 2020, B was in bed with her between X and the appellant.  Most evenings the appellant and the mother came into her bedroom to check the windows and to check on the children.  X was aware of the appellant’s tucking her in and he would pull the blanket up, when it had fallen down.  For the events of 10 July 2020, B was on X’s left hand side.  After an incident when B had made a big mess of some Milo and rice, the mother had asked the appellant to keep an eye on B.  B would get up before X.  One blanket was placed over X and B.  X recalled the appellant asking B to be quiet.  When she woke up on 10 July 2020, B was sitting up eating his Pringles and was not moving.  The incident where her chest and vagina were touched by the appellant lasted five to 10 minutes.  X did not get up on that day until about 10.00 am.  The mother had wanted her to clean the kitchen.  X took A’s iPad from him and Y’s phone from her.  She told them to help her.  The appellant came into the kitchen/lounge area and said that she could not bully her siblings to do her chores.  She stormed off and went to her room.  The appellant cleaned up the kitchen.  X accepted that around October or November 2019, the appellant from time to time kissed her on the forehead as she went to sleep.  She also accepted that if the kiss on the lips occurred, it was “simply an accident”.  After she told her mother and Z about the kiss, there was no more kissing on the forehead.  When the appellant mentioned the incident to X, she told the appellant that she thought she may have been dreaming.  X agreed that the appellant cut her hair when they were outside on the patio and the mother and her three younger siblings were inside the house.  X did not agree that, during the course of cutting her hair, the appellant flicked hair off X’s body, as X did that herself.  In re-examination, X stated that on the occasion of 10 July 2020, when she had been fake sleeping, she opened her eyes and saw the appellant leaving the room.
11. [11]
    Y’s s 93A statement was also recorded on the morning of 11 July 2020 and included the following.  Last week the appellant came into her room when she was sleeping and she woke when he touched her “panty”.  The appellant pretended nothing happened, he took his hand away and asked whether she wanted to hang out with him in the mother’s bedroom.  Y said yes and went back to sleep and the appellant went away.  Y did not tell anyone what the appellant had done on that occasion until she heard X telling Z what had happened on 10 July 2020.
12. [12]
    Y gave evidence about another occasion in 2019 when X and Y were sleeping in the same room in a motel and the appellant came into the room.  X was asleep and Y saw the appellant touch X’s stomach and thighs.
13. [13]
    Z’s evidence included the following.  The mother was working on the morning of 10 July 2020.  Z woke up at 9.30 am and went to the gym.  The appellant was looking after her siblings.  When she returned around 12 noon, the appellant left to meet the mother for lunch.  Z was in her room eating lunch when X and Y came in crying.  X said that she caught the appellant in her room that morning touching her vagina and nipples while she was half asleep and that she pretended she was asleep, because she was scared.  Both X and Y were crying.  Y said to Z that she caught the appellant last week, when he was touching her underneath her underwear, and when she woke up, he asked her if she wanted to sleep with him in the mother’s room and Y said no.  Z called the mother to come home which she did.  Z took X and Y into town and telephoned an aunt.  Z went to the police station on 10 July 2020 and returned the next day to give a statement.  In cross-examination, she stated that she did not see X and Y before she went to the gym on 10 July 2020.
14. [14]
    The mother’s evidence included the following.  She worked as an aged care nurse which involved night shifts.  On a Friday she worked from 6.00 am to 11.00 am.  Each of X and Z had her own bedroom and Y also had her own bedroom which she shared with A.  When the appellant was not there, A and B slept with the mother.  The appellant’s daughter sometimes stayed at the mother’s home, when the appellant was staying there on a Friday or Saturday night.  The mother had the routine of kissing the children goodnight, closing the windows and making sure they were off their gadgets.  The mother told the appellant not to kiss the children goodnight after X told the mother and Z that the appellant had kissed her.  They stayed in holiday accommodation for two weeks in November 2019 before they moved into the rental house.  In that holiday accommodation X and Y slept in one bedroom.
15. [15]
    On 10 July 2020 after Z had reported to her as to what X and Y had told Z, the appellant told the mother that X was angry at him, because he told her off for taking the children’s gadgets.  The appellant also told the mother that he was chasing B and B went into X’s room and hid in her blanket.  The appellant said he was trying to take B out from X’s room.
16. [16]
    The mother’s evidence in cross-examination included the following.  The mother was unaware that the appellant was kissing her daughters goodnight before X told her that was what he was doing.  She had been aware that the appellant kissed his own daughter goodnight.  A few days before 10 July 2020, B had got into a cupboard in the kitchen and spread some Milo or rice around everywhere.  Before the mother went to work on 10 July 2020, she asked the appellant to keep an eye on B, because she did not want him to make a mess again.  The appellant had the mother’s authority to tell the children to clean their bedrooms and tidy up around the house, but he was not permitted to hit her children.  X is strict with her siblings and liked to boss the younger siblings around.  The mother’s rule was that if the children did not clean up, they could not have their gadgets.  If X did that with her siblings, she was probably trying to copy the mother.
17. [17]
    At some stage after the mother had provided a statement to the police, she asked X and Y what had happened.  X would not talk to her and Y told her that she was not lying about what the appellant did to her.  It was put to the mother that she had told the appellant that she had spoken to X and Y and they had told her that their allegations were untrue.  The mother disagreed with that proposition.  The mother said that Y said it did happen and that she did not want the appellant to go to gaol.
18. [18]
    The appellant participated in an electronic record of interview with the police on 11 July 2020 and that was played before the jury in the prosecution case.  His explanation for feeling under X’s blanket while she was asleep on the morning of 10 July 2020 was as follows.  His partner had left for work and told him to keep an eye on the youngest child B who was three years old and the only child then awake.  B had a tendency to get “ingredients and coffee, milo, sugar and everything ‘in the kitchen everywhere’.”  On this particular morning, B was holding something and the appellant thought it was an ingredient, so he asked him what he was holding and then B ran to his sister’s room and went underneath the blanket and was hiding there.  The appellant was searching under the blanket for what B was holding and B kept moving, while X was sleeping.  The appellant found it was a tube of Pringles.  B then gave the tube of Pringles to the appellant.  The appellant did not talk to X, because she was asleep.  He told B not to make a noise, because X was sleeping, and not to make a mess.  The appellant then left the room.  The appellant had lifted the blanket up to look for B and what he was holding.  X was sleeping, but she was moving as well, because her brother kept moving.  The appellant went outside to vacuum his car.
19. [19]
    Later when X got up, she came out and said hello to the appellant, as was usual.  Z went to the gym.  X was preparing her food in the kitchen and the younger three children were crying, as X took their gadgets and asked them to do the dishes which was X’s responsibility.  B was crying as X was on her phone on the couch, it was very loud and B could not hear the television.  The appellant told X off and said that it was her job to do the dishes.
20. [20]
    The appellant had the responsibility as the man of the house to make sure the doors and windows were locked and would enter the children’s rooms to check the windows.
21. [21]
    X tended to bully the younger children and the appellant was always telling her off as it was her responsibility to take care of them.  It was possible X was mad at the appellant as a result.
22. [22]
    The appellant and the mother checked on the children when they were asleep, putting the blanket on them, making sure the windows were closed, and kissing them goodnight on the forehead.  Last year there was a particular night that the mother was not with him, as she was in the shower, and she told him to go and check on the children.  The mother asked him what happened, as X said that the appellant had kissed her on the lips.  He had not.  The mother told him to stop kissing the children goodnight on the forehead.  She told the appellant not to go into their bedrooms without her.  He had never kissed the children on the lips, but just on the forehead like he did when he kissed his own daughter goodnight.
23. [23]
    As to what happened in the morning of 10 July 2020, the appellant suggested that it was possibly B who touched X when B was moving and struggling.  It was also possible that the appellant touched X by accident.  The appellant denied going into Y’s room the previous week and touching Y.  He only did the normal check that the window was closed.
24. [24]
    The appellant did not give or call evidence at the trial.

The prosecution case at trial

25. [25]
    The prosecution case at trial depended on the jury’s acceptance of the evidence of X and Y.  The prosecution case relied on the similarity in offending against X and Y and, in relation to counts 1, 3 and 4, uncharged acts committed against X that demonstrated the appellant had a sexual interest in X.  The uncharged acts were the appellant’s touching X in the motel room that was observed by Y, the appellant’s kissing X on the lips, the touching of X’s thighs and belly in a circular motion by the appellant on the day he cut X’s hair, and the five occasions in 2020 when X had caught the appellant in her bedroom.

The appellant’s case at trial

26. [26]
    The appellant’s trial counsel submitted to the jury that they would not be satisfied beyond a reasonable doubt that the conduct the subject of each of the charges had occurred.  In other words, the appellant put the prosecution to proof of guilt of each charge which depended on the reliability and credibility of X and Y.  In relation to counts 3 and 4, an alternative argument was also advanced that, if there had been contact of X by the appellant, it occurred when the appellant was chasing B and the contact was an accident or the contact was from B squirming in the bed.  The facts relevant to the appellant’s case at trial were therefore those facts relevant to whether each of the incidents occurred as related by X and Y or whether the conduct the subjects of counts 3 and 4 happened by accident or from B’s contact with X.
27. [27]
    The appellant’s counsel’s address to the jury relied on the appellant’s evidence in the record of interview, asserting the jury would weigh up what the appellant said during his record of interview as “he comes across as a truthful person trying to give his best account of what he says occurred … in relation to these particular allegations”.  The appellant’s counsel also submitted that the jury would not be satisfied beyond reasonable doubt in respect of any of the uncharged acts.

The additional evidence

28. [28]
    The appellant’s affidavit referred to a conference which he had with his legal representatives on 15 June 2021, where he gave instructions as to the complainants’ motivation and the allegations and he provided his solicitors with a typed out written statement in response to the allegations and the motivation of the complainants.  Ms Kurz who is a lawyer at Legal Aid Queensland with the carriage of the file for the appellant’s appeal, contacted the appellant’s previous solicitor to obtain any conference notes and instructions with respect to the appellant’s trial.  The solicitor provided the written notes of the conference with the appellant on 15 June 2021 and the typewritten statement prepared by the appellant which were respectively exhibits EK‑2 and EK‑3 to Ms Kurz’s affidavit.
29. [29]
    Ms Gilllies on behalf of the respondent contacted the appellant’s previous solicitor and trial counsel and neither of them was willing to provide an affidavit to the respondent for the purpose of the appeal.  Ms Gillies also obtained from Ms Kurz the previous solicitor’s notes of a conference with the appellant and counsel on 18 June 2021, trial notes made during the prerecording of the evidence of X and Y, and undated notes of a conference with the appellant and counsel that commenced with explaining the court process.
30. [30]
    The appellant’s affidavit dealt only with the instructions he gave at the conference on 15 June 2021 as to the complainants’ motivation and allegations and the provision of his typed out written statement in response to the allegations and the complainants’ motivation.  The appellant instructed on 15 June 2021 that he felt that the complainants had made up the allegations to get rid of him.  The instruction as to the complainants’ motivation to make the allegations was not based on any evidence adduced at the trial and is more properly described as speculation by the appellant rather than instruction on a matter of fact.  That can be contrasted with the appellant’s instruction also given on 15 June 2021 that none of the incidents occurred which was an instruction on relevant facts that was the basis of the appellant’s case at the trial.
31. [31]
    The appellant dealt at length in his typewritten statement with the circumstances in which he kissed X on the forehead and not on the lips.  In contrast to his record of interview where he said there was a particular night when the mother was not with him, when he went to check on the children (as she was in the shower and told him to check on the children without her), the appellant’s typewritten statement recited that the mother followed him to the girl’s room and watched him outside the door when he checked on X and pulled the blanket up and kissed her on her forehead.  In the instructions given on 15 June 2021, the appellant stated that he had a discussion with X after she had complained to the mother about the appellant’s kissing her goodnight.  The appellant said he told her that he was kissing her on her forehead and that X responded “ok maybe I was dreaming”.
32. [32]
    In dealing with the incident in March 2020 which was count 1 (and was incorrectly designated as count 2 in his typewritten statement), the appellant stated that there was only one possible reason for why X was making the complaint.  It was that X did not like to be told off especially when “they” did not listen to him and he would tell the mother.  The appellant’s explanation then appeared to apply to both X and Y.  He stated that when the mother scolded the children in front of the appellant and then left the room, X and Y would roll their eyes and say to the appellant that he did not belong in their home and he should not be there, as he was not their father and they wanted their father.  In relation to counts 3 and 4, the appellant stated in his typewritten statement that X was “just making revenge because [the appellant] told her off”.  In addition, the appellant referred to some information conveyed to him by the mother.  The mother told him that X was always talking to her father (the father) who thinks about getting revenge about their separation and was “continuously poisoning his kids minds”.  He recorded that the mother told him that one time she overheard the father on the phone talking to the kids saying that if the appellant was acting like their father and trying to be bossy, they could tell the police and then he would be gone.  The appellant then set out what he said the mother said to him after she had asked X and Y what had really happened.  The mother told him that Y blamed X for what happened and said that X forced Y or connived with her to make false allegations.  The mother told the appellant that when she asked X what the appellant had done to her, X said “because I am always in trouble because of him”.
33. [33]
    The appellant stated in his affidavit that at no point did he ask his legal representatives not to use the instructions in relation to the complainants’ motivations for the allegations and his response to the allegations in his typewritten statement.  The appellant did not address in his affidavit the relevant evidence in his record of interview about the kissing incident to the extent that it differed from the appellant’s typewritten statement.  The s 21AK cross-examination of X in respect of the kissing incident reflected the appellant’s instructions given on 15 June 2021 that X conceded that she may have been dreaming and was otherwise consistent with the appellant’s record of interview about the kissing incident where the appellant stated the mother was not present.  In view of this approach to the cross-examination of X that preceded the trial and the appellant’s trial counsel’s express approach during the address to the jury of placing weight on the appellant’s record of interview as a truthful account in response to the complainants’ allegations, it is reasonable to infer that the appellant did not object to counsel’s reliance at the s 21AK cross-examination and the trial on the appellant’s record of interview in respect of the kissing incident.  That is also consistent with the fact that on this appeal the appellant did not dispute his trial counsel’s unqualified reliance on the truth of the appellant’s statements in the record of interview in the address to the jury.

Was the appellant’s trial counsel obliged to cross-examine on matters (a), (b) and (c)?

34. [34]
    The duties of counsel explained by Mason CJ in Giannarelli v Wraith (1988) 165 CLR 543 at 555-556 apply equally to defence counsel in a criminal trial: Crampton v The Queen (2000) 206 CLR 161 at [163].  This includes that defence counsel exercises an independent discretion or judgment in the conduct and management of the case and must be mindful of counsel’s duty to the client and the overriding duty to the Court.  Deciding what questions will be asked in cross-examination is within the exercise of defence counsel’s “independent discretion or judgment in the conduct and management” of the case.
35. [35]
    Where a defendant in a criminal trial has given express instructions on factual matters that are fundamental to the defence case at trial, the defence counsel is obliged to cross-examine relevant witnesses consistent with the instructions on those factual matters.  An example of a breach by a defendant’s lawyer of the obligation to cross‑examine consistent with instructions on factual matters is R v Mansoori [2019] QCA 250.  Mr Mansoori was convicted of rape.  His instructions to his solicitor advocate were that little of physical significance occurred between him and the complainant and that his spermatozoa was detected on a tissue in a bin as he went alone to the complainant’s toilet where he masturbated and ejaculated onto a tissue that he threw away.  The solicitor cross-examined the complainant by suggesting a scenario that Mr Mansoori’s penis had not entered the complainant’s pants and he then stood up in her presence and caught ejaculate in his hands that was inconsistent with Mr Mansoori’s instructions.  Mr Mansoori succeeded on his appeal on the ground that the facts put to the complainant were not the facts as instructed by Mr Mansoori and that occasioned a miscarriage of justice.  Another example of a breach by a defendant’s trial counsel of the obligation to cross-examine consistent with instructions that resulted in a successful appeal is R v Silcock (2020) 4 QR 517.  Mr Silcock accepted that sexual contact occurred between him and the complainant which he could not remember.  He gave instructions to accept that in respect of one count of rape that there was oral stimulation of the vulva with the complainant’s consent but no penetration.  The defence counsel cross-examined by suggesting detail in respect of that incident that had not been conceded by Mr Silcock in his instructions and was consistent with an admission of penetration that was contrary to his express instructions.
36. [36]
    In relation to matter (a), the appellant’s trial counsel cross-examined X to elicit evidence consistent with the appellant’s instructions that, on the morning of 10 July 2020, X stormed off to her room after the appellant had spoken to her about bullying her siblings to do her chores.  Trial counsel had put the appellant’s case to X that none of the incidents the subject of the counts occurred and the alternative case in respect of counts 3 and 4 of accident or contact from B.  The appellant’s suggestion of a motive of revenge on the part of X for making the complaints was speculation on the appellant’s part and was only relevant to undermining the credit of X which was already put in issue by her cross-examination.
37. [37]
    Matter (b) was also a matter of speculation on the appellant’s part that X and Y were encouraged by the father to make false complaints.  Strictly speaking, the appellant’s instructions about what the mother told him about the father set out in his typewritten statement did not go as far as asserting that the father encouraged X and Y to make false complaints about sexual misconduct on the part of the appellant.  In any case, the position in relation to matter (b) is the same as for matter (a).  The suggestion of manipulation by the father would have been relevant only for the purpose of undermining the credit of X and Y which was already an issue in the trial and had been the focus of their cross-examination.
38. [38]
    The appellant’s argument that his specific instructions on matters (a) and (b) were not put to the relevant witnesses is concerned with an alleged failure by trial counsel to cross-examine on matters relevant to the credit of the complainants and not of factual matters that were of significance to the appellant’s case at trial on which trial counsel was obliged to cross-examine in this trial.  The cross-examination of the complainants on these credit issues was, in the context of this trial, a matter for the exercise of the trial counsel’s judgment and discretion.
39. [39]
    In relation to matter (c), the appellant’s assertion that the mother was in a position to see that the appellant kissed X on the forehead and not the lips (as set out in the appellant’s typewritten statement) differed from his evidence in the record of interview played to the jury where the appellant specifically identified the incident in which X claimed the appellant kissed her on the lips as an occasion where the mother was in the shower and asked him to check on the children (without her).  In view of the reasonable inference that the appellant did not object to the reliance his trial counsel placed on his record of interview at the trial, the appellant cannot show on this appeal that there was an obligation on the trial counsel to cross-examine on the contrary instruction that the mother was in a position to see the appellant’s kissing X on the forehead.  There were large parts of the mother’s evidence that were otherwise supportive of the appellant’s record of interview.  It was within the trial counsel’s discretion and judgment, as to whether he cross-examined the mother on the kissing incident and challenged her credit by putting a version that was inconsistent with the appellant’s record of interview and the evidence the mother otherwise gave about the kissing incident.
40. [40]
    The challenge by the respondent to the implicit assumption in the ground of appeal succeeds.  The appellant’s trial counsel was not obliged to cross-examine on matters (a), (b) and (c).
41. [41]
    On this analysis, the appellant cannot succeed on the ground of appeal as framed.  The appellant’s trial counsel was not required to put in cross-examination every particular of his instructions, and the case that was not put was consistent with those instructions.  The ground of appeal is, in substance, no more than a challenge to the forensic decisions made by the appellant’s trial counsel at the trial.
42. [42]
    The appeal must be dismissed.
43. [43]
    McMURDO JA:  I agree with Mullins P.
44. [44]
    FLANAGAN JA:  I agree with Mullins P.