R v KBE[2023] QCA 161

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P AND MITCHELL AJA:  The appellant was convicted on 24 August 2022 after a trial before a jury in the District Court of maintaining a sexual relationship with a child.  The complainant was the daughter of his partner.  At the hearing of the appeal on 2 May 2023, the Court made the following orders:

1. Appeal allowed.
2. Conviction set aside.
3. New trial ordered.
4. Reasons to be published at a later date.

2. [2]
   These are the reasons for the orders of the Court.

Grounds of appeal

3. [3]
   The grounds of appeal were:

1. A miscarriage of justice occurred because the trial judge erred in directing the jury that they could use exculpatory statements by the appellant as probative of his guilt.

2. A miscarriage of justice occurred because the trial judge failed to direct the jury that the acts alleged in categories 4 and 5 of the particulars could not amount of unlawful sexual acts unless they were satisfied that the appellant’s motive or intention was sexual gratification.
3. A miscarriage of justice occurred because the trial judge failed to direct the jury that they must acquit the appellant if they accepted that his account to police “might be true”.
4. The verdict was unreasonable or cannot be supported having regard to the evidence.

4. [4]
   The grounds of appeal will be dealt with in the order in which they were addressed by the appellant on the hearing of the appeal which was grounds 2, 1, 3 and 4.

Relevant background

5. [5]
   The offending was particularised as occurring between November 2011 and August 2019 (which was three months short of eight years) during which period the complainant was aged between seven and 14 years.  The appellant is 30 years older than the complainant.
6. [6]
   When the appellant first met the complainant’s mother, he was a seasonal fruit picker.  Around July 2011 when they had been in a relationship for about six months, the complainant’s mother together with the complainant and the complainant’s elder brother (complainant’s brother) who was about 16 months older than the complainant went to live with the appellant on the farm where he was working.  At that stage, the appellant drove a Hino Rainbow motorhome (which was described in evidence as “the bus”). They eventually ended up at a regional centre in Queensland (which will be referred to as Town A) where the complainant was enrolled to attend primary school between November 2011 and November 2012.  They then moved to another regional centre (which will be referred to as Town B) where the complainant attended primary school from November 2012 until December 2016.  The complainant started high school in Town B in January 2017.
7. [7]
   The complainant spoke to a school counsellor on 18 February 2020.  The complainant moved out of the home where she had been living with her mother and the appellant on 22 February 2020.  On 24 February 2020 her first s 93A statement was recorded by the police.  The complainant was interviewed by Detective Senior Constable Applebee.
8. [8]
   The appellant was interviewed by Detective Applebee on 26 February 2020 in relation to the complainant’s allegations.
9. [9]
   The complainant returned to the police station on 20 April 2021 where a second s 93A statement was recorded in relation to three further instances that the complainant recalled about sexual assaults committed against her by the appellant.
10. [10]
    The complainant’s evidence for the purpose of the trial was pre-recorded on 23 June 2021.
11. [11]
    The acts relied on by the prosecution to constitute the offence were ultimately particularised at the trial by reference to five categories as follows:

    1. Category 1 – Touching and/or rubbing the complainant’s vaginal area with his hand, under her clothing when living at the Town A house and he picked the complainant up for koala hugs.
    2. Category 2 – Touching and/or rubbing the complainant’s vaginal area with his hand, under her clothing when living at the Town A house and sitting on the couch.
    3. Category 3 – Touching and/or rubbing the complainant’s vaginal area with his hand, over her clothing when the complainant was living at the Town A house and writing a letter to Santa.
    4. Category 4 – Touching and/or rubbing the complainant’s legs and/or buttocks when living in the Town B area.
    5. Category 5 – Touching and/or rubbing the complainant’s breast and/or breasts when living in the Town B area.
12. [12]
    Apart from the complainant’s evidence in both s 93A statements and the pre-recorded evidence that were played for the jury, the complainant’s brother and mother and Detective Applebee gave evidence for the prosecution.  The appellant’s record of interview (exhibit 8) was tendered in the prosecution case.  The appellant neither gave nor called evidence.  The appellant’s contention at the trial was that the jury would not be satisfied beyond reasonable doubt by the complainant’s evidence that the acts relied on in categories 1, 2 and 3 and the acts relied on to show sexual interest happened and that the conduct in categories 4 and 5 had been mischaracterised and the prosecution could not prove the conduct was indecent.

The complainant’s evidence

13. [13]
    The complainant’s evidence in the first s 93A statement included the following.  The first occasion that she was sexually assaulted by the appellant was when she was  seven years old, they were living in his bus and they all had to sleep together in the bed, and one night the appellant touched her in the vaginal area.  It continued when they moved to Town A when the appellant would pick her up in what is called a “koala hug” when he would touch her inappropriately.  When they were sitting on the couch, the complainant would sit on the appellant’s lap and he would touch her.  When they moved to the Town B area, the appellant did not touch the complainant in the vaginal area anymore but would touch her on the bottom, the thigh or close to her breast area and that continued until she was 14 years old.
14. [14]
    In relation to the bus incident, the complainant was in the bed on the bus with the appellant next to her, her mother next to the appellant and then her older brother.  The complainant felt the appellant’s fingers touching her vagina but they did not go in.  She was lying on her left side and the appellant was behind her.  He put his hand in the bottom part of the boxers that she was wearing.  The complainant told her brother the next morning when they went outside.  She said that the appellant “touched my wee-wee”.  She did not tell her mother.
15. [15]
    When they were living in the house at Town A and the appellant picked the complainant up in a koala hug, he would put his hands in her pants or whatever she was wearing and rub or touch the surface of the vaginal area.  It was painful.  It happened “quite often”.  He put his hand underneath her bottom and inside her clothing.  She told her mother after a couple of months about it but she could not remember the detail of the conversation.  It also happened “quite often” when they lived in Town A that, while watching television, the complainant would sit on the appellant’s lap on the couch and the complainant would feel the appellant’s hand as he rubbed her vagina inside her clothing.  She did not say anything and she did not tell anyone at that time.
16. [16]
    When they moved to the area of Town B, the appellant would place his hand on the complainant’s lower back or on her bottom, if she was walking past him or standing next to him.  When they went places in the car, if the complainant was in the front seat, he would grab her thigh.  He touched her on the bottom multiple times a day.  She did tell her mother that the appellant was touching her.  She could not recall what her mother said.  They moved to another address in the Town B area and the appellant continued to touch the complainant in the area of her bottom but not as often.  The appellant touched her on the thigh only rarely when she was in the passenger seat of the car, when he would hold her inner thigh.  The complainant did not know if it was done intentionally, but when she and the appellant would hug and he was holding her back, he would touch her under the armpit area.  They moved to another place in the Town B area and the appellant would brush her bottom lightly.  He had stopped touching her in the breast area but that was not common in the first place.  One morning at this house when the complainant was using the sunroom next to her parents’ bedroom as her bedroom, she was getting dressed and saw the blinds on the window between the two rooms peeking open and shutting quickly.  The appellant was upstairs at the time.  The complainant finished getting ready and challenged the appellant about looking through the blinds.  He responded that he was not doing that.  She spoke to her mother about it.
17. [17]
    The complainant’s evidence in the second s 93A statement covered the three additional incidents.  The first incident occurred at the farm where they had first lived as a family when the complainant was six years old.  The complainant was making earrings with her mother using earring hooks and beads in the dining room of the bus and her mother told her that if she wanted to make more earrings she had to kiss the appellant on the lips.  The complainant said that she did not want to kiss the appellant and did not.  The second incident was in Town A when the complainant was writing her Christmas letter to Santa by lying on her back in the doorway of her bedroom with her legs open and the appellant was lying on the ground facing towards her when the appellant massaged or rubbed her vaginal area over her pink leggings for 10 to 20 minutes.  The third incident was when they were in the Town B area and a family friend S had stayed over for about a week.  The complainant could remember heading over to the train station and could not remember whether it was to drop S off but it was likely as she remembered S arriving at night time.  They arrived at the train station and the complainant was seated in the front passenger seat when the appellant who was driving put his hand on her inner thigh close to her vaginal area.  The complainant did not remember where S was.
18. [18]
    The complainant’s s 21AK pre-recorded evidence including the following evidence in chief.  The frequency of the koala hugs at Town A was daily and the appellant would touch her vaginal area every time he gave her a hug.  The frequency of the appellant’s touching her when they were seated on the couch at Town A was not as often as the koala hugs but it happened on multiple occasions.  When they moved to the Town B area, the complainant had to hug the appellant every morning and night and that was when he touched her inappropriately.  Sometimes it would be the lower back and buttocks area, sometimes it would be the breast area underneath the armpit, and sometimes it was on the thighs when the complainant was sitting down.  Sometimes it would be on top of the thigh close to the hip area or inside close to the vaginal area.  It was different each day.  The appellant wanted the complainant to kiss him on the lips when she kissed him in the morning and at night.
19. [19]
    The complainant’s evidence included the following in cross-examination.  The complainant’s relationship with the appellant was a closer one than with her mother when they were living in the Town B area.  The complainant was physically affectionate towards the appellant in terms of hugs.  In respect of the koala hug at Town A in respect of which the complainant had informed a prosecutor on 20 April 2021 that she had a particular memory of it happening in the kitchen when everyone else was outside, she confirmed there was no penetration.  The complainant remembered one particular instance of sitting cross legged on the appellant’s lap on a singular chair in the lounge room in the house at Town A, when the complainant’s brother and mother were not in the room.
20. [20]
    The complainant’s brother confirmed that there was one occasion when he and his sister, mother and the appellant slept on the bus.  He slept on the floor and his sister slept in the bed.  His relationship with his mother and the appellant was close.  His contact with the complainant stopped when she moved out of the family home.  The only time that the complainant said anything to him about the appellant’s conduct was a night or two before she left the family home.  He never saw anything inappropriate between the appellant and the complainant.  The complainant had a close and affectionate relationship with the appellant.  They hugged regularly and she would run to him and give him big hugs.
21. [21]
    The complainant’s mother’s evidence included the following.  There were two nights when the children slept in the bus on the way to Town A.  On the first night, the complainant’s brother slept in the bed with the complainant’s mother and the appellant while the complainant slept on the floor.  On the second night, the complainant’s brother slept on the floor and the complainant slept in the bed in front of the complainant’s mother who had her arms around her.  The complainant’s mother was between the complainant and the appellant.  When the family friend S came to stay with the family in the Town B area for a week, it was late at night when the appellant drove S to the train station.  None of the children went with them, as they had to go to school the next day.  When they were living in Town A, the complainant told her mother that the appellant had touched her and made a motion towards her vagina.  The complainant’s mother spoke to the appellant about it.  The complainant had said it happened in the kitchen.  The appellant said to the complainant’s mother “the only thing I did was pick her up.  I don’t know how it … could have happened.  I didn’t do it” and the complainant’s mother believed him.  The appellant would give the complainant a normal hug every day.  The complainant’s mother did not see the appellant pick the complainant up in a hug.  At one time the complainant told her mother that she thought the appellant was looking through a window with a blind on it and a sheet over it that was between the two bedrooms.  The complainant’s mother spoke to the appellant about this allegation and he told her he was not looking at the complainant through the window.  The complainant’s mother never made earrings with the complainant in the bus and never told her to kiss the appellant to get parts for an earring.  The complainant’s mother had been sexually molested as a child and was vigilant to ensure that the same thing did not happen to her children.  The complainant’s mother witnessed hugs between the appellant and the complainant daily and was not concerned about what she saw.  The complainant was affectionate towards the appellant and would always go to him for a hug.
22. [22]
    The appellant’s record of interview included the following statements.  The complainant would give him hugs by jumping up and grabbing his arms and her legs would go around his waist.  By the time the family moved to the third address in the Town B area, the koala hugs had stopped.  The appellant denied touching the complainant on the vagina under her clothing during the koala hugs.  There was one incident when they lived in Town A where the complainant had been playing with her brother on the slip and slope in the backyard and was wearing her swimmers.  She came inside the kitchen.  The appellant picked her up and transferred her from one hip to the other and touched her on the outside of her swimmers “a little too close” to her vagina and he apologised for touching her there and it had hurt her.  The appellant could remember the complainant sitting on his knee on the single seat at the house in Town A.  He did not touch the complainant on the vagina when she was seating on his knee.  When they lived in the Town B area, the complainant would hug the appellant and he would give her hugs.  The complainant initiated more hugs than the appellant did.  They were not koala hugs.  The appellant would touch her on the buttocks “in an endearing way” and “not in a sexual way” such as when he was wishing her a good night.  It was “just father-daughter” and was not sexual.  When the appellant dropped the complainant off at high school, he would turn around and tap her on the knee or touch her leg as she was getting out of the car.  It was not a grope but to wish her to have a nice day.  There may have been a few times when the appellant hugged the complainant that he accidentally touched the side of her breast.  He also used the word “inadvertently” in describing what happened in those hugs.  The appellant did not open the venetian blind on the window between his bedroom and the sunroom that was occupied by the complainant as a bedroom.  The appellant recalled the occasion when the complainant yelled out something to him while he was in the bedroom and the complainant’s mother spoke to him about it.  The one night the appellant could recall that the complainant slept in the bus, the complainant slept in the middle between the appellant and the complainant’s mother.  The appellant denied touching the complainant’s vagina inside her pyjamas on that occasion.

The summing up

23. [23]
    In directing the jury on the elements of the offence of maintaining an unlawful sexual relationship with a child who was under 16 years, the trial judge reminded the jury of the five categories of acts relied on by the prosecution and explained that each of those acts was capable of constituting the offence of indecent dealing with a child under the age of 16 years.  The trial judge directed the jury that before they could use any act as an offence of sexual nature relied on to constitute the offence of maintaining, the jury had to be satisfied of each of the elements of the offence of indecent dealing beyond a reasonable doubt.  In respect of the element that the dealing or the touching was indecent, the trial judge gave the usual direction:

“The word ‘indecent’ bears its ordinary everyday meaning, that is what the community regards as indecent.  It is what offends against currently accepted standards of decency.  And indecency must always be judged in the light of time, place, and circumstances.”

24. [24]
    After explaining the elements of the offence of indecent dealing, the trial judge reminded the jury of the appellant’s contention that he did not do the alleged acts in categories 1, 2 and 3 and the contention that the prosecution could not prove any of the alleged acts in categories 4 and 5 was in the circumstances indecent.  The trial judge did identify the real issue in the case as whether the appellant did the act or acts relied on to constitute the offence and, if the jury found he did, whether they were indecent acts.  The trial judge did not explain that accidental touching without any sexual purpose could be an example of an act that the community would not regard as indecent.
25. [25]
    The trial judge directed the jury as to the use they could make of the appellant’s statements in the record of interview.  The trial judge identified those statements in the record of interview that were relied on by the prosecution as supporting its case against the appellant:

“The statements are those relating to the relevant times, places and the opportunity to have done the acts relied on to constitute the offence or as showing a sexual interest in the complainant and include: (1) those statements relating to inadvertently touching the complainant near the vagina, on one occasion, while she was wearing her swimmers during a koala hug at [Town A] (2) the complainant sitting on his knee on the single seat and (3) giving her hugs in the [Town B] area and (4) touching the complainant’s bottom, leg or knee and breast, in the circumstances he described. He also acknowledged that (5) the complainant did sleep in the bed on the bus on that occasion.” (numbers inserted)

26. [26]
    In dealing with ground 1, those statements will be referred to by the numbers given to them in the above quote from the summing up.
27. [27]
    The trial judge then gave the standard direction about the jury being satisfied that the appellant had made each statement and that the jury were satisfied that the statement was true and accurate.  In relation to the latter aspect, the trial judge stated:

“So, if you are satisfied that the statement was indeed made by the [appellant] the second aspect you must consider is whether those parts that the prosecution relies on in reasoning toward a finding of guilt are true and accurate. It is up to you to decide whether you are satisfied that those things said by the [appellant], which are relied on by the prosecution, were true, because, if you are not satisfied, you cannot rely on them as going to prove his guilt.”

28. [28]
    The trial judge then gave the usual direction about how the jury then should use the exculpatory and inculpatory statements in the record of interview:

“So, in the course of the interview, it is said the [appellant] made statements which the prosecution relies on as pointing to his guilt. If you accept them as having been made by the [appellant] and as true, it is up to you to decide what weight you give to them and what you think they prove. He also made statements which you might view as indicating his innocence. You are entitled to have regard to those answers, if you accept them, and to give them whatever weight you think appropriate. In relation to the statements which the prosecution relies on as going to prove guilt and those which point to innocence, it is entirely up to you what use you make of them and what weight you give to them.”

29. [29]
    The trial judge then gave a direction based on the direction in the Supreme and District Courts Criminal Directions Benchbook (the Benchbook) at No 26.2-26.3 for when a defendant gives evidence (the Liberato direction) and adapted to the fact that the appellant’s version was in his record of interview.  The direction given by the trial judge included the following:

“A case may be described as ‘word against word’.  However, you should understand that is inaccurate because in a criminal trial, it is not a question of making a choice between the evidence of the prosecution’s principal witness and the evidence of the defendant’s statement;  that is, what the defendant has said about the offence.  The proper approach is to understand that the prosecution case depends upon you, the jury, accepting that the evidence of the prosecution’s principal witness, that is, the complainant, was true and accurate beyond reasonable doubt, despite the statement from the defendant.  So, you do not have to believe that the defendant is telling the truth in that statement before he is entitled to be found not guilty.

Where, as here, there is evidence led of the defendant’s statement about the offence, usually one of three possible results will follow.  First, you may think the statement is credible and reliable and that it provides a satisfying answer to the prosecution’s case.  If so, your verdict would be not guilty.  Or secondly, you may think that although the statement was not convincing, it leaves you in a state of reasonable doubt as to what the true position was.  If so, your verdict would be not guilty.  Or thirdly, you may think that the statement should not be accepted.  However, if that is your view, be careful not to jump from that view to an automatic conclusion of guilt.  If you find the statement should not be accepted, set it to one side, go back to the rest of the evidence and ask yourself whether, on a consideration of such evidence as you do accept, you are satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question.”

30. [30]
    In summarising the appellant’s counsel’s contentions at the trial, the trial judge set out the appellant’s arguments in relation to the conduct in categories 4 and 5 based on the statements made by the appellant in the record of interview:

“Secondly, the alleged acts in category 4 and 5 in the [Town B] area, although the complainant felt it was uncomfortable, does not mean that it was indecent and you would not be satisfied the acts in categories 4 and 5, in all the circumstances of this case that you were taken to, was indecent.  The complainant did not show any evidence of avoiding or shying away from the [appellant] prior to complaining to authorities and the complainant originally was not sure a touch of the breast was even intentional.”

Ground 2 – direction on element of indecency for categories 4 and 5

31. [31]
    The appellant submits that a direction of the kind considered in R v Jones (2011) 209 A Crim R 379 at [30] and [32] was required.  Where the touching may not be indecent depending on the circumstances, the motive of the defendant to touch the complainant could be a factor in characterising the assault as indecent or not, as explained by White JA (with whom de Jersey CJ and Fraser JA agreed) in Jones at [30] by reference to authorities including the observation of Murray J in Drago v The Queen (1992) 8 WAR 488.  In Drago, Murray J (who was the only member of the Court who dealt with the issue of motive in determining whether an assault was indecent) stated at 503:

“In my opinion, whether an act may be described as indecent because it offends against community standards of decency, may depend not only upon the nature or quality of the act in itself, but upon the motive or purpose of the actor.  …

But where the act in question was capable of being regarded as indecent, but was not necessarily to be so regarded in itself, the motivation of the actor might operate in one of two ways. It might of course confer the quality of indecency upon an act which might, differently explained, be held not to be so. On the other hand, the motive of the actor might render innocent an act which otherwise, without explanation, might be regarded as indecent.”

32. [32]
    White JA concluded in Jones at [32]:

“The quality of ‘indecency’ is pre-eminently a question for a jury and where there is evidence capable of casting doubt upon the sexual quality of the alleged assault, the motive of the alleged offender must go to the jury for their deliberation and decision.”

33. [33]
    The dictum of Murray J in Drago was applied in Western Australia v Jackson (2019) 55 WAR 285 at [59].
34. [34]
    In light of the appellant’s statements made in the record of interview that admitted he touched the complainant on the bottom in an endearing way and not a sexual way, tapped her on the knee or touched her leg to wish her a good day as she was being dropped off at school, and once or twice had accidentally touched her breast on the side when he was hugging her, the motive or reason of the appellant in so touching the complainant was relevant to whether the jury could find those admitted acts to be indecent, as explained in Jones at [30] and [32].  It is unknown which of the particularised acts members of the jury (or some of the members of the jury) relied on to find the appellant was guilty.  It could have been acts within categories 4 or 5 that were admitted by the appellant.
35. [35]
    The direction in the Benchbook for indecent dealing with a child under 16 at No 146.4 sets out a suggested paragraph based on Jones at [32] where the motive of the alleged offender is raised as an issue at the trial:

“[If appropriate] In looking at all factors, including those I have just mentioned, you must consider if the touching had a sexual connotation. I direct you that it is only if you accept beyond reasonable doubt that there was a sexual connotation to the touching, that is that the charged touching was motivated by a desire held by the defendant to gain some form of sexual experience, pleasure or satisfaction that you would find that the conduct was indecent. What the complainant thought of the conduct is not to the point, it is the motive or reason for the defendant touching the complainant in the manner that he/she did, as you find it to be, which is important is deciding if there was a sexual connotation to the conduct.”

36. [36]
    The acts relied on as constituting categories 4 and 5 of the offending in this case did not “unequivocally offer a sexual connotation”: see R v Harkin (1989) 38 A Crim R 296 at 301 cited in Jones at [27].  Therefore, it was necessary for the trial judge to extend the direction, given on whether these acts were indecent, so that the jury considered whether the motive or reason which the appellant asserted in the record of interview precluded the jury being satisfied beyond reasonable doubt that there was a sexual connotation to the acts within categories 4 and 5.  The trial judge’s summary of the appellant’s trial counsel’s arguments (referred to at [24] and [30] above) fell short of giving the jury a specific direction that the conduct was only indecent if they were satisfied beyond reasonable doubt that the appellant’s motive or reason for touching the complainant in the manner that he admitted he did was for a sexual purpose.  They could not be so satisfied, if the prosecution could not exclude beyond reasonable doubt that the conduct was accidental or done in a “fatherly” manner without any sexual purpose.  The Liberato direction given by the trial judge in general terms was not sufficient to alert the jury to consider the issue of indecency in respect of the admitted conduct in categories 4 and 5 from the appellant’s viewpoint, if they accepted that his statements in that regard might possibly be true or otherwise did not entirely reject those statements.  It was significant that the extended direction on what amounts to “indecent” was not given by the trial judge, when the trial judge had identified for the jury that one of the real issues in the case was whether the acts were indecent, if the jury found the appellant did the acts relied on to constitute the offence.
37. [37]
    Although no redirection was sought by the appellant’s trial counsel for this aspect of the indecency direction to be given at the trial, there was equally no forensic reason for not so doing.
38. [38]
    The appellant discharged the onus of showing there was a miscarriage of justice by the failure of the trial judge to give this direction on the appellant’s motive or reason relevant to the acts in categories 4 and 5 admitted by the appellant and therefore succeeded in establishing ground 2.  The respondent on the hearing of the appeal did not seek to show that ground 2 did not give rise to a substantial miscarriage of justice.

Ground 1 – failure to direct the jury about the effect of the appellant’s exculpatory statements

39. [39]
    As the Court concluded at the hearing of the appeal that a new trial should be ordered, some assistance may be provided for the new trial by addressing grounds 1 and 3.
40. [40]
    The focus of ground 1 is on the direction that was given by the trial judge in how to use those of the appellant’s statements in the record of interview that were relied on by the prosecution in its case.
41. [41]
    The appellant submits that the five specific statements made by him in his interview that were relied on by the prosecution as capable of supporting proof of his guilt were not wholly inculpatory and it was not correct to say that those statements could be relied on as going to prove his guilt without further explanation from the trial judge on how to use them when they were inextricably bound up with the exculpatory parts of those statements.  It is submitted that the first, second and fifth statements could, at most, have been used to prove that the appellant had an opportunity to touch the complainant in the circumstances that she described and the first, third and fourth statements may have been capable of demonstrating a sexual interest that the appellant had for the complainant.  Importantly, however, each of the statements was accompanied by a denial by the appellant of any deliberate contact with the complainant’s vaginal area or a denial of physical contact with other parts of her body with a sexual purpose.  The appellant therefore submits that in giving the direction based on admissions in the appellant’s interview relied on by the prosecution as supporting proof of the appellant’s guilt, the trial judge should also have directed the jury at the same time that they could act on those inculpatory statements only if they rejected the appellant’s accompanying explanations for such acts.
42. [42]
    It was appropriate that the trial judge did give the Liberato direction modified to reflect that the appellant’s relevant statements were made in the record of interview: De Silva v The Queen (2019) 268 CLR 57 at [11].  The content of those five statements from the appellant’s interview relied on by the prosecution at the trial made it prudent for the jury also to be directed that they could not rely on the inculpatory aspect of those statements unless they rejected the corresponding exculpatory aspect.

Ground 3 – failure to direct the jury to acquit if they accepted the appellant’s account “might be true”

43. [43]
    Ground 3 is based on the preference expressed by Kiefel CJ and Bell, Gageler and Gordon JJ in De Silva at [12] for the Liberato direction to be framed as follows:

“… (i) if you believe the accused’s evidence (if you believe the accused’s account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused’s evidence (if you do not believe the accused’s account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?”

44. [44]
    The point made in support of this ground is that the trial judge framed the second limb of the Liberato direction by reference to “reasonable doubt” rather than, as set out in the above quote from De Silva, that “if you do not accept that evidence (account) but you consider that it might be true, you must acquit”.  The preference expressed in De Silva at [12] for the form of words in the Liberato direction that does not use “reasonable doubt” in the second limb (which is now reflected in the Benchbook direction No 26) did not mean the trial judge was in error in expressing the second limb of the Liberato direction in the following terms:

“Or secondly, you may think that although the statement was not convincing, it leaves you in a state of reasonable doubt as to what the true position was.  If so, your verdict would be not guilty.”

Ground 4 – unreasonable verdict

45. [45]
    The appellant contends that the complainant’s testimony was contradicted in material respects by the evidence of her mother and brother and that, upon an independent assessment of the sufficiency and quality of the whole of the evidence at the trial, it was not reasonably open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of the offence.
46. [46]
    The general principles governing an appeal on the ground of an unreasonable verdict are set out in M v The Queen (1994) 181 CLR 487 at 492-495.  As stated at 493, “the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.  In addressing that question, the Court proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable.  As stated in M at 494-495 and also in Pell v The Queen (2020) 268 CLR 123 at [39], the Court examines the record to see whether (notwithstanding that assessment by the jury and allowing for the advantages enjoyed by the jury in assessing the evidence) by reason of inconsistencies, discrepancies or other inadequacy or in light of other evidence, the Court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
47. [47]
    The complainant’s evidence in this case, if accepted, established the elements of the offence.  The critical issue was whether the complainant’s evidence as to those elements was credible and reliable.  This involved an assessment of the credibility and reliability of the evidence of the complainant and her mother and brother.  The jury had a considerable advantage over this Court in the assessment of those matters.
48. [48]
    The appellant relies on an accumulation of matters to assert the jury ought to have entertained a reasonable doubt about the truthfulness and reliability of the complainant’s evidence.  To the extent that some of the matters are based on the complainant’s evidence being inconsistent with either her mother’s evidence or brother’s evidence, the implicit assumption in the submission is that the evidence of those witnesses should be preferred which is not necessarily the case.  For example, one of the matters is that the complainant’s evidence that the appellant touched her on the inner thigh, when he drove S to the train station, was contradicted by her mother’s evidence that the complainant did not accompany S and the appellant on that occasion as it was at night.  That discrepancy loses it force when the complainant was not certain whether the incident occurred when dropping S off or picking S up, particularly as the complainant conceded that she did not remember where S was in the car.  Another example where the contradiction between the mother’s evidence and the complainant loses its force is whether the appellant gave the complainant koala hugs.  Whereas the complainant’s mother denied that the appellant picked the complainant up in a hug, the appellant conceded that he gave the complainant koala hugs and therefore supported the complainant’s evidence on this aspect.
49. [49]
    There were other aspects of the complainant’s mother’s evidence that supported the complainant’s evidence.  The complainant’s mother confirmed that the complainant had made a complaint to her when they were living in Town A that the appellant had touched her in the vaginal area.  The fact of that complaint was also confirmed by the appellant to whom the complainant’s mother spoke about it.
50. [50]
    Even though the appellant characterised his touching of the complainant on the bottom as done in an endearing and not a sexual way, asserted the touching of the complainant on the knee when he dropped her off at school was to wish her a nice day, and conceded that he had accidentally touched the side of the complainant’s breast when hugging her, those statements all provided some support for the complainant’s evidence, subject to the question left open for the jury on the basis of all the evidence of whether that touching was indecent.
51. [51]
    The complainant’s brother’s evidence does not have the significance for the unreasonable verdict ground asserted by the appellant.  The complainant was almost seven years old and her brother was eight years old when the family slept in the bus.  The complaint which the complainant said she made to her brother the next day about the appellant’s touching her on the vagina was very brief and it was not surprising that he did not recall the conversation 10 years later.
52. [52]
    One of the matters relied on by the appellant is that there were three additional incidents disclosed by the complainant on 20 April 2021 that were not disclosed at the time her first s 93A statement was made on 24 February 2020.  That she had not disclosed some of these incidents when first interviewed was the subject of her cross-examination.  The late disclosure of these three incidents and that the complainant had not recalled them when giving the first interview was a matter that was addressed in the arguments of counsel to the jury.  It is not an unusual feature of the evidence of a complainant in a case of alleged child sexual abuse that not all aspects of the offending were disclosed at the one time.  The three incidents were not otherwise inconsistent with the general tenor of the evidence in her first s 93A interview.
53. [53]
    The fact that during the lengthy period over which the offending conduct was particularised that the complainant conceded she had a close and physically affectionate relationship towards the appellant (that was also observed by the complainant’s brother and mother) did not preclude the occurrence of the conduct that was relied on by the prosecution to prove the offence of maintaining.  The brazen nature of much of the appellant’s conduct described by the complainant did not make her account inherently implausible.
54. [54]
    On an overall assessment of the evidence, the numerous inconsistencies and discrepancies relied on by the appellant to assert the verdict was unreasonable were not necessarily impediments to the jury’s being satisfied of the truthfulness and reliability of the complainant’s evidence on the elements of the offence.  A review of the whole of the evidence does not give rise to a reasonable doubt as to the appellant’s guilt which cannot be explained by the jury’s advantage of having seen and heard the evidence at the trial.  Upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence.
55. [55]
    As the appellant could not succeed on ground 4, the appropriate order which was made at the conclusion of the hearing of the appeal was for a new trial.
56. [56]
    DALTON JA:  I agree with the reasons given by Mullins P and Mitchell AJA in relation to the rejection of the appellant’s argument that a verdict of acquittal ought to have been entered on this appeal.
57. [57]
    Otherwise, my reasons for joining in the orders made on 2 May 2023 are as follows.
58. [58]
    Each of the three grounds relied upon (see [3] of the judgment of Mullins P and Mitchell AJA above) were related in that they all sprang from statements made by the appellant to police in a record of interview.  In his interview the appellant denied any indecent assault upon the complainant.  However, in answering questions posed by the police he said things which were relied upon by the Crown as inculpatory.  The relevant part of the summing‑up as to this part of the prosecution’s case was as follows:

“The prosecution relies on statements said to have been made by the defendant in supporting its case against him. …

The statements are those relating to the relevant times, places and the opportunity to have done the acts relied on to constitute the offence or as showing a sexual interest in the complainant and include: those statements relating to inadvertently touching the complainant near the vagina, on one occasion, while she was wearing her swimmers during a koala hug at [Town A] the complainant sitting on his knee on the single seat and giving her hugs in the [Town B] area and touching the complainant’s bottom, leg or knee and breast, in the circumstances he described.  He also acknowledged that the complainant did sleep in the bed on the bus on that occasion.

In order to rely on that evidence, you must be satisfied the defendant made the statements that are attributed to him and that they were true.  So first, you must be satisfied the defendant made the statement.  In this case, the statement was recorded.  That was admitted as an exhibit, and you can play that as often as you wish.  The defendant does not contend that he did not make the statement.  So, secondly, you must be satisfied that the statement was true and accurate.  So, if you are satisfied that the statement was indeed made by the defendant, the second aspect you must consider is whether those parts that the prosecution relies on in reasoning toward a finding of guilt are true and accurate.  It is up to you to decide whether you are satisfied that those things said by the defendant, which are relied on by the prosecution, were true, because, if you are not satisfied, you cannot rely on them as going to prove his guilt.

…

So, in the course of the interview, it is said the defendant made statements which the prosecution relies on as pointing to his guilt.  If you accept them as having been made by the defendant and as true, it is up to you to decide what weight you give to them and what you think they prove.  He also made statements which you might view as indicating his innocence.  You are entitled to have regard to those answers, if you accept them, and to give them whatever weight you think appropriate.  In relation to the statements which the prosecution relies on as going to prove guilt and those which point to innocence, it is entirely up to you what use you make of them and what weight you give to them.

…

A case may be described as ‘word against word’.  However, you should understand that is inaccurate because in a criminal trial, it is not a question of making a choice between the evidence of the prosecution’s principal witness and the evidence of the defendant’s statement; that is, what the defendant has said about the offence.  The proper approach is to understand that the prosecution case depends upon you, the jury, accepting that the evidence of the prosecution’s principal witness, that is, the complainant, was true and accurate beyond reasonable doubt, despite the statement from the defendant.  So, you do not have to believe that the defendant is telling the truth in that statement before he is entitled to be found not guilty.

Where, as here, there is evidence led of the defendant’s statement about the offence, usually one of three possible results will follow.  First, you may think the statement is credible and reliable and that it provides a satisfying answer to the prosecution’s case.  If so, your verdict would be not guilty.  Or secondly, you may think that although the statement was not convincing, it leaves you in a state of reasonable doubt as to what the true position was.  If so, your verdict would be not guilty.  Or thirdly, you may think that the statement should not be accepted.  However, if that is your view, be careful not to jump from that view to an automatic conclusion of guilt.  If you find the statement should not be accepted, set it to one side, go back to the rest of the evidence and ask yourself whether, on a consideration of such evidence as you do accept, you are satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question.”

59. [59]
    The appellant’s statements to police were that while the acts identified by the trial judge at the second paragraph of the passage just quoted did occur:

    1. the first touching was inadvertent;
    2. there was nothing sexual about the complainant sitting on his knee or his giving the complainant hugs;
    3. there was nothing sexual in his touching the complainant’s bottom or leg but that he would give her a pat or a tap in an “endearing” way, for example, to say goodbye as he dropped her off at school;
    4. he may have touched the side of the complainant’s breasts when he gave her a cuddle “inadvertently … Maybe once or twice”.  (In fact, even the complainant said she was not sure whether this contact was intentional);
    5. although he thought he had slept in the same bed as the complainant once on the bus, the complainant had slept beside her mother and nothing of a sexual nature occurred.

Sexual Connotation

60. [60]
    Because of what the appellant said to police, an issue in the trial was whether or not the acts relied upon by the Crown at (b) and (c) above had “the necessary sexual connotation … to render [them] capable of being held to be indecent …”.^[1]
61. [61]
    The jury ought to have been told that they needed to be satisfied that the appellant had a sexual motivation in doing the acts before they could amount to indecent assaults.  It needed to be pointed out to the jury that the appellant denied such a sexual motive, and that if his denial caused them a reasonable doubt, they could not regard those acts as being indecent assaults which could be considered as evidence upon which the maintaining charge could be based.
62. [62]
    It is also necessary that an act relied upon as an indecent assault be intentional.^[2]  In the circumstances of this case, the jury ought to have been specifically told that; it was relevant to what they made of the acts at (a) and (d), above.

Directions as to use of Police Interview

63. [63]
    The passage of the summing-up which is the third paragraph in the extract above, would have been appropriate in a case where the appellant had made out-of-court admissions.  The difficulty is that in this case what the appellant said to police was a denial of any indecent assault.  The direction was therefore not apposite.  It was capable of confusing a jury because the instruction was that if they were satisfied what the appellant said to the police was true, they could rely upon it as going to prove his guilt.  A more nuanced direction was called for, which dealt separately with the parts of the interview which the Crown relied on as being inculpatory, and those which the defence relied upon as being exculpatory.
64. [64]
    The judge does come to discuss the fact that there are these two different types of statements in the police evidence shortly after the passage to which I have just referred.  However, that part of the summing-up is in general, rather than precise, terms and not apt to dispel the confusion which may have been caused by the earlier passage.  I think another difficulty is that the last part of it, which tells the jury to give whatever weight to, and make whatever use they wish of, the exculpatory parts of the appellant’s statement to police, is closely related to the second limb of the Liberato direction in the extract above, yet each direction is in different terms.  One direction crafted to the circumstances of this case, rather than two, based on general benchbook examples, should have been given.

The Language used in the Liberato Direction

65. [65]
    The appellant complained separately as to the second limb of the Liberato direction.  The argument relied upon a passage in De Silva v The Queen,^[3] where Kiefel CJ, Bell, Gageler and Gordon JJ expressed a preference for this limb of the Liberato direction to be expressed in more modern and clearer language than it traditionally has been.  The language suggested was, “if you do not accept that evidence (account) but you consider that it might be true, you must acquit”.
66. [66]
    I do not think that a failure to use the more modern language preferred in De Silva, by itself, was sufficient to cause any miscarriage of justice.  However, in this case where there had already been some inaccuracy, some lack of precision and some contradiction in the judge’s dealing with the exculpatory parts of the police interview, I think that the more modern language would have assisted the jury.