R v ABI[2023] QCA 166

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  I agree with the reasons for judgment of Flanagan JA and with the order proposed by his Honour.
2. [2]
   FLANAGAN JA:  On the first day of a four-day trial before her Honour Judge Rosengren, the appellant entered pleas of not guilty to a 13 count indictment.  Each of those counts alleged that on a date unknown between the first day of March 1986 and the first day of August 1986 at Brisbane in the State of Queensland, the appellant unlawfully and indecently dealt with the complainant, a child under 16 years.
3. [3]
   The 13 counts related to five distinct occasions on which the complainant alleged that the appellant had sexual dealings with him.
4. [4]
   Counts 1 to 4 occurred in the appellant’s bedroom at her residence while the complainant’s father was drinking at a hotel.  Counts 1 to 4 were particularised as follows:

Count 1: The complainant touched and/or rubbed the appellant’s vagina.

Count 2: The complainant penetrated the appellant’s vagina with his finger/s.

Count 3: The complainant used his tongue to lick the appellant’s vagina.

Count 4: The complainant put his penis inside the appellant’s mouth.

5. [5]
   Counts 5 to 7 were alleged to have occurred in the appellant’s bedroom after the complainant bought the appellant a drink of water.  Counts 5 to 7 were particularised as follows:

Count 5: The appellant touched and/or rubbed the complainant’s penis.

Count 6: The complainant used his tongue to lick the appellant’s vagina.

Count 7: The complainant penetrated the appellant’s vagina with his finger/s.

6. [6]
   Counts 8 to 10 were alleged to have occurred in the kitchen of the appellant’s house in the presence of another woman who will be referred to as CB.  Counts 8 to 10 were particularised as follows:

Count 8: The complainant touched the appellant’s breast/s.

Count 9: The complainant penetrated the appellant’s vagina with his finger/s.

Count 10: The complainant put his penis inside the appellant’s mouth.

7. [7]
   Counts 11 and 12 were alleged to have occurred at a public beach, again in the presence of CB.  Counts 11 and 12 were particularised as follows:

Count 11: The appellant pressed the complainant’s head against her vagina.

Count 12: The complainant touched and/or rubbed the appellant’s vagina on the outside of her swimmers.

8. [8]
   Count 13 was alleged to have occurred in the bathroom of the appellant’s house after the complainant had showered.  Count 13 was particularised as the appellant touching and/or rubbing the complainant’s penis on the outside of his towel.
9. [9]
   At the conclusion of the Crown case, a nolle prosequi was entered in relation to Count 6 because the complainant’s evidence was that the appellant performed oral sex on him.  He did not give evidence of the act as particularised, namely that he used his tongue to lick the appellant’s vagina.
10. [10]
    The appellant was found guilty of Counts 1, 2, 3, 4, 5, 7, 8, 9 and 10.  The appellant was found not guilty of Counts 11, 12 and 13.
11. [11]
    The appellant appeals her convictions on the following three grounds:

1. The verdicts of guilty are unreasonable and cannot be supported having regard to the evidence as a whole;
2. The verdicts of guilty are inconsistent with the verdicts of not guilty in respect of Counts 11, 12 and 13; and
3. The failure of the learned trial judge to allow the appellant’s application pursuant to s 4(2) of the Criminal Law (Sexual Offences) Act 1978 (Qld) amounts to a miscarriage of justice.

12. [12]
    The appellant does not seek to make anything of the nolle prosequi entered by the Crown in relation to Count 6.  The appellant accepts that it cannot be ruled out that any inconsistency between Count 6 as particularised and the complainant’s evidence arose because of a drafting error in relation to the particulars.  This is in circumstances where the case was opened by the Crown prosecutor on the basis of the evidence the complainant gave rather than by reference to the particulars of Count 6.^[1]

Ground 1: Unreasonable verdicts

13. [13]
    The issue raised by this ground of appeal is whether this Court, as an appellate court, is of the opinion that the verdicts of the jury should be set aside on the ground that they are unreasonable, or cannot be supported having regard to the evidence pursuant to s 668E(1) of the Criminal Code.  On the authority of M v The Queen,^[2] this involves a determination as to “whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the [appellant] was guilty”.
14. [14]
    In Pell v The Queen^[3] the High Court observed:

“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable.  The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”

The complainant’s evidence

15. [15]
    At trial the complainant’s evidence was given while the court was closed.  The complainant resided with his mother and father in Victoria until they separated when he was approximately 11 years of age.  Shortly after the separation, the complainant’s father moved to Brisbane where he resided at a caravan park.  The complainant frequently visited his father in Brisbane for school holidays until, at the age of 14, he moved in with his father at the caravan park.  He enrolled in a school in Brisbane where he was in Grade 9.  It was an admitted fact that he was enrolled at the school from April to August 1986 and would have been 14 years of age at the relevant times.
16. [16]
    At the time the complainant moved to Queensland, his father was in a relationship with the appellant.  The complainant had previously met her when he visited his father during school holidays.  When the complainant first met the appellant, she was in her early thirties.  The appellant resided in a house with her two daughters, both of whom were called by the Crown at trial.  I will refer to the appellant’s daughters as the older daughter and the younger daughter.
17. [17]
    According to the complainant, his father spent more time at the appellant’s house than he did at the caravan park.  When the appellant’s daughters would stay at a different address with their father, the complainant would stay over at the appellant’s house which had three bedrooms.
18. [18]
    The complainant’s evidence was that the first time sexual dealings occurred with the appellant was following a disagreement between his father and the appellant.  His father had been drinking and after this disagreement with the appellant, he drove to a hotel.  The appellant requested the complainant to go to the hotel to check on his father.  The complainant’s recollection is that he was driven to the hotel by the appellant and CB.  The complainant’s father refused to return to the house.
19. [19]
    On returning to the house, the complainant went into the appellant’s bedroom to inform her that his father was not coming home.  He sat down next to the appellant and shook her leg to wake her up.  The appellant took the complainant’s hand and placed it on her vagina and “manipulated (his) hand to cause movement in the genital area”^[4]  (Count 1).  The complainant recalled feeling under the appellant’s underwear and noticing that she was wet.  The appellant then made the complainant put his fingers inside her vagina (Count 2).  The appellant talked of sexual intercourse and made a statement that she could not do that because the complainant was “her partner’s son”.^[5]  The appellant then spread her legs apart.  She placed her hands on the back of the complainant’s head and pushed his head into her groin at which point the complainant performed oral sex on her (Count 3).  The complainant stood up and the appellant pushed him against the wall, pulled his shorts down and performed oral sex on him (Count 4).  The complainant recalled that he became erect but did not ejaculate.  He pulled up his shorts and returned to the bedroom where he was sleeping.
20. [20]
    The complainant’s evidence as to Counts 5 and 7 was that he was in the lounge room of the appellant’s house.  Only the appellant and himself were at the house.  The appellant called out to him from her bedroom and requested a glass of water.  When the complainant entered the appellant’s bedroom with the glass of water, the appellant was lying in her bed.  The complainant sat on the bed and the appellant placed her hand on his penis and “rubbed back and forth” causing the complainant to become aroused (Count 5).^[6]  The appellant took the complainant’s hand and placed it in between her legs and inserted his fingers into her vagina (Count 7).  Although the appellant suggested to the complainant that he “fuck her”, nothing came of that and there was no intercourse.^[7]
21. [21]
    The next incident, constituting Counts 8 to 10, occurred on a weekend when the complainant was staying at the appellant’s house.  Neither his father nor the appellant’s daughters were present.  The appellant and CB were in the kitchen sitting on the floor drinking wine.  The complainant was in the lounge room watching television when he was called to the kitchen.  He recalled that the appellant was wearing cut off denim shorts and a tank top.  He sat down in front of her on the floor and a discussion ensued as to how many girls he had been with and generally as to his sexual experiences with girls.  The appellant grabbed the complainant’s hand and put it inside the crutch of her shorts.  She inserted his fingers into her vagina (Count 9).  The appellant told the complainant that he should massage the nipples of a woman that he was trying to pleasure.  She took hold of his left hand and placed it on her breast and squeezed her nipple with it (Count 8).  CB was watching at this time.  After a short time, the appellant pulled the complainant closer, pulled his shorts down and performed oral sex on him in front of CB (Count 10).  The complainant recalled that after the appellant had performed oral sex on him, CB suggested that if they didn’t stop she would join in.  Shortly thereafter the complainant pulled his pants up and left.  There was evidence at trial from a police officer that CB had passed away.
22. [22]
    As to the conduct constituting Counts 1 to 4, 5 and 7 and Counts 8 to 10, the complainant was cross-examined on the basis that none of the conduct occurred and that the complainant was motivated to make false allegations because he blamed the appellant for the breakdown of his relationship with his father.  While the complainant readily accepted that he blamed the appellant for the breakdown of his relationship with his father, he rejected any suggestion that the conduct had not occurred:^[8]

“… I’d suggest to you there was no occasion when you were alone at the house of [the appellant] without, either your father or [the appellant’s] children? --- That is incorrect.  …

And that your claim that you returned to [the appellant’s] house at night from [the hotel] is not true? --- It is true.

You’ve made a series of claims about sexual contact with [the appellant].  I suggest to you that not one single event of sexual activity occurred between you and [the appellant]? --- Every event that I’ve detailed happened.

You have concocted these allegations out of your desire to blame [the appellant] for the breakdown of your relationship with your father? --- No.  Not at all.

You do blame [the appellant] for the loss of your relationship with your father? --- I do, yes. …

Your claim that [CB] sat and watched you and [the appellant] engage in sexual activity in the kitchen … is completely false? --- It is completely true.

Your claim that [CB] suggested she would join in to that sexual activity if you didn’t stop is also completely false? --- That too is completely true.”

23. [23]
    The complainant’s evidence concerning Counts 11 and 12 was that the complainant, in company with the appellant and CB, attended the beach on the surf side of Bribie Island.  Initially the complainant was playing in the surf on his own.  The three then engaged in what he described as “a tunnel ball game” but with humans as the ball.^[9]  This involved a person standing with their legs apart so the other person could swim through their legs.  The appellant first swam through the legs of CB and as he was swimming towards the appellant she “squatted more so in the water” so that the complainant’s head and face ran into the appellant’s groin area.  According to the complainant, this was “[f]ollowed by the next time around, it was hands-on groin and fingers in her vagina”.^[10]
24. [24]
    The complainant could not remember if the beach was “extremely packed”.  He believed that the water was deep enough to be able to swim through someone’s legs and be fully submerged.  The complainant believed that when he “collided” with the appellant, she held his head there against her groin but it wasn’t for “a great deal of time”.^[11]
25. [25]
    As to the appellant inserting the complainant’s fingers into her vagina, the complainant’s evidence was as follows:^[12]

“She manipulated, she grabbed me on the way through, you know, like when you’re swimming, that swimming motion.  You know, she’s physically grabbed my hand and held me at that point.  I guess I was aware of what she was trying to achieve and yeah, it was just the stupidity of that so-called game.”

26. [26]
    In cross-examination, the complainant accepted that he had previously claimed that the conduct alleged to constitute Counts 11 and 12 had occurred at Bribie Island during warmer months.^[13]
27. [27]
    The evidence from the police officer who was the lead investigator was that a complaint was received from the complainant on 30 January 2020.  In cross-examination however, the complainant accepted that he did not make a complaint about the Bribie Island conduct until 10 November 2022, at which time he informed police that he had recalled another incident that occurred with the appellant and CB.  This resulted in an addendum statement dated 10 November 2022.  His recollection of the alleged Bribie Island conduct was triggered by a photograph of his father’s Holden motor vehicle:^[14]

“You say in the statement:

I cannot recall which car she was driving.

?---Yes.

You also say:

However, I do remember around this time that my father had a HJ or similar Holden car.

?---Yes.

You also say:

I do have a photograph of dad’s car.

?---Yes.

And you then say:

It was when I came across this photo that I was triggered and recalled this incident that occurred at Bribie on the surf-side of the island

?---Right.

It is the case then… that when looking through photos, you have recalled events from the 1980s? --- Potentially; everything’s a trigger.”

28. [28]
    The appellant submits that her acquittals in relation to Counts 11 and 12 constitute not only inconsistent verdicts but also render the guilty verdicts as being unreasonable.  As a preliminary observation, however, the complainant’s evidence in relation to Counts 11 and 12 is of a different quality to his evidence in relation to the counts on which the appellant was found guilty.  The alleged conduct at Bribie Island was not the subject of the complainant’s original complaint to police.  Further, unlike the complainant’s recollections of other sexual dealings, his memory of the Bribie Island conduct was “triggered” by a photograph.  Added to this is that any alleged sexual conduct on the part of the appellant occurred in the course of a game being played in the surf at a public beach which involved the complainant swimming between the legs of the appellant.  These differences in the quality of the complainant’s evidence in relation to Counts 11 and 12 are considered further in relation to Ground 2.
29. [29]
    As to the final occasion, constituting Count 13, it is necessary to set out the complainant’s evidence:^[15]

“Was there any other occasion where the [appellant] was sexual towards you? --- Not physically.  At that point I’d had enough.  I guess I realised from day 1 that it was not cool.  I can remember I had a shower, could have been days, week or more after the event and I had a shower there and [the appellant’s] come into the bathroom and sexually provoked, I guess, and I’ve just pushed her away.  I’ve said, “No, not interested”, to those words or that effect. …

And you said that she’s provoked.  What do you mean by that, what did she do? --- She’s tried to put hands on and just, yeah, it was just hands on, trying to get hands on me, like, yeah normal.  Running up and down my shorts, trying to get me excited, I guess you’d call.  Yeah, that’s pretty much it.

How were you dressed at the time? --- I was just – I stepped out of the shower so I had nothing on initially and I put a towel around me.

Okay.  And where did she touch you with her hand? --- She was trying to touch me on the groin and stomach area, around my groin.  And I put the towel on me to [s]emi-protect myself, I suppose, and at that point modesty was never an issue because I’d been exposed many times.  But there was no more uncomfortable than the first time.

You said that she was trying to touch.  Did she in fact touch you? --- Yes, she did.

Yes.  Where did she touch you? --- On my groin.

On your groin.  Your penis? --- Yes.

Is that on the outside of the towel? --- From what I recall, yes, because I am pretty sure I put the towel around me as soon as I got out to cover myself up.”

30. [30]
    The only direct evidence which the complainant gave of the appellant actually touching his penis rather than attempting to touch him “on his groin”, was in response to a leading question from the Crown prosecutor.  The quality of the complainant’s evidence in relation to Count 13 is further considered in relation to Ground 2.
31. [31]
    After the last incident, the complainant stopped going to the appellant’s house.  He recalled isolating himself at the caravan park where he would shower, sleep and cook for himself.  Within weeks of the last incident, he telephoned his mother in Victoria.  He told his mother that the appellant “had been inappropriate” with him^[16] and that sexual contact had occurred.  He specifically told his mother about the incidents of cunnilingus and fellatio.  He recalled that his mother initially said something about him coming home to Melbourne.  The complainant did not return to Melbourne.  The complainant also recalls speaking to his grandmother about the conduct.  His grandmother has since passed.
32. [32]
    In approximately 1997, the complainant told his then girlfriend as follows:^[17]

“… I told her about the inappropriate acts between [the appellant] and myself and how it had caused me to stop communicating with my father and how I would love to be able to re-initiate, I suppose, a normal father son relationship, but that – that interaction between her and I was – was stopping that because, I guess, of my guilt.  And even though I knew I had nothing to feel guilty about, I still did.”

33. [33]
    The complainant told his father about the conduct in mid-1998.  The complainant’s father died in 2006.  The meeting with his father occurred at the complainant’s sister’s house in Victoria.  The complainant believed that his sister was there as a “mediator” and believes that she was present when he told his father.
34. [34]
    At the time of giving evidence, the complainant was estranged both from his mother and his sister and had not spoken to either of them since his father’s funeral in 2006.  Both the complainant’s mother, sister and his former girlfriend gave evidence at trial.
35. [35]
    The complainant was cross-examined as to suggested inconsistencies between his evidence and the evidence given by these three witnesses.  The complainant’s evidence was that after the last incident he obtained employment on a trawler.  It was not until he was about 16 or 17 that he again visited his mother in Melbourne.  While he recalls travelling to Melbourne on a number of occasions by Greyhound Bus, he rejected any suggestion that he returned to his mother in Victoria after his telephone conversation with her.  He rejected the suggestion that in his telephone conversation with his mother, he had told her that the appellant had “seduced” him.  What he told his mother was that inappropriate behaviours had occurred.  While he accepted that his mother may have suggested that he return to Victoria immediately, he did not do so.  Importantly, in cross-examination it was not suggested to the complainant that he had not made a contemporaneous phone call to his mother in which he discussed the conduct of the appellant.
36. [36]
    As to what he told his former girlfriend, the complainant accepted in cross-examination that he may have said that the appellant was “quite attractive”.^[18]  He rejected the suggestion that he told his former girlfriend that he had had sex with the appellant.  His evidence was that there was sexual engagement with the appellant.

The complainant’s mother’s evidence

37. [37]
    The complainant’s mother’s evidence was that when the complainant was about 14 or 15 years of age, he telephoned her in a distraught state.  She recalled the complainant told her in that conversation that the appellant had seduced him.  She stated that she put money into the complainant’s bank account and told him to return to Melbourne.  She recalled that the complainant returned to Victoria two days later by bus.  She was not cross-examined.

The complainant’s sister’s evidence

38. [38]
    The complainant’s sister gave evidence that when the complainant was maybe 13 or 14, he left Melbourne to visit Queensland and travel and work.  When she visited her father, she would stay at the appellant’s house.  She knew that the appellant was her father’s then girlfriend.  She recalls that her father and the appellant would consume a lot of alcohol together.  When asked whether the complainant had ever told her of anything sexual happening between himself and the appellant, the sister responded:  “No, he has never told me directly”.^[19]  This evidence as to the complainant not telling her “directly” was not clarified by the Crown prosecutor.
39. [39]
    The sister was not cross-examined.

The appellant’s older daughter’s evidence

40. [40]
    The older daughter gave evidence that she lived with the appellant until approximately 1992.  She recalled that the complainant’s father was the appellant’s boyfriend at some stage.  She did not see him often.  Her mother had a friend, CB.  She recalled that the appellant would consume alcohol in the kitchen.  She only remembered the complainant being at her mother’s house on one occasion and could not recall what his interaction was like with anyone else.

The appellant’s younger daughter’s evidence

41. [41]
    The younger daughter gave evidence that the complainant’s father was her mother’s boyfriend for a time.  She was approximately 10 years of age in 1986.  She could not recall the complainant and his father coming over to the house very often.  She recalled that the appellant and the complainant’s father would drink Moselle in the kitchen.  She also recalled the appellant’s friend CB, who would also drink with the appellant.

The complainant’s former girlfriend’s evidence

42. [42]
    The former girlfriend had been in a relationship with the complainant for approximately two years commencing in 1997.  Within the first six months of her relationship with the complainant he told her that his father’s girlfriend had seduced him.  She recalled that she was told that this woman would rub the complainant’s penis, would come onto the complainant sexually and that the two had had sexual intercourse.

Consideration of Ground 1

43. [43]
    The appellant relies on three alleged inconsistencies in the complainant’s evidence which are identified in the appellant’s written submissions as follows:^[20]

“The challenges to the complainant’s evidence, some of which were supported by other evidence, went to the complainant’s reliability in relation to specific matters and to his credibility generally.

For example, the complainant’s evidence that he left Brisbane by boat and went to sea after the last offence, was contradicted by his mother’s evidence that he returned to Victoria by bus.

Separately, the complainant’s evidence that he reported the offending to his sister and father in a meeting at his sister’s house was not supported by his sister’s evidence, which was given in-chief.

The complainant was also contradicted by the evidence of his ex-girlfriend… to whom he claimed to have spoken “about the inappropriate acts between [the appellant] and myself and how it had caused me to stop communicating with my father”.  [The complainant’s former girlfriend] gave evidence that the complainant told her the appellant was “attractive” and they had sex, which [the former girlfriend] understood to mean that they had slept together.”

44. [44]
    These identified inconsistencies are not of a type that would render the verdicts unreasonable.  First, the evidence of the complainant and his mother that he telephoned her in 1986 in a distraught state and spoke about the appellant’s conduct was not challenged.  Any difference between the complainant’s evidence and the mother’s evidence as to what was said in the telephone conversation does not detract from the fact that the complainant was speaking of the appellant’s sexual dealings with him.  Whether the correct narrative is that the complainant obtained employment on a trawler or returned to Victoria by bus does not detract from the force of the evidence that a contemporaneous complaint about the appellant’s conduct was made by the complainant to his mother.
45. [45]
    Similarly, with the evidence of the former girlfriend, the significant fact is that in 1997 the complainant informed his then girlfriend of the appellant’s sexual dealings with him.  Both the complainant and his former girlfriend were attempting to recall conversations that occurred in 1997.  Any inconsistency as to what was said is not surprising.  Further, the fact that the former girlfriend may have understood a reference by the complainant to him having sex with the appellant as amounting to sexual intercourse only reflects the former girlfriend’s understanding and interpretation of what was said to her in 1997 by the complainant.
46. [46]
    The submission that the complainant’s evidence (that he reported the offending to his sister and father at a meeting at his sister’s house) was not supported by his sister’s evidence does not withstand scrutiny.  The complainant was seeking to recall a meeting that occurred in mid-1998.  The primary purpose of the meeting was for the complainant to inform his father as to what occurred.  As stated by the complainant:^[21]

“It was just I needed to dad – tell – tell my dad.”

47. [47]
    The complainant’s sister was not cross-examined.  Nor was she questioned in chief in relation to this meeting between her father and the complainant.  Further, as already observed, her evidence as to not being told “directly” of what occurred between the complainant and the appellant was not clarified.  In such circumstances, any inconsistency does not directly affect the reliability of the complainant’s recollection of his meeting with his father at his sister’s house in mid-1998.
48. [48]
    The inconsistencies identified by the appellant are the type of inconsistencies one would expect in a case involving historical sexual offending.  None of these inconsistencies constitute “unchallenged evidence” as considered by the High Court in Pell.  It was by reference to the “unchallenged evidence” in Pell that the High Court observed:^[22]

“Upon the assumption that the jury assessed A’s evidence as thoroughly credible and reliable, the issue for the Court of Appeal was whether the compounding probabilities caused by the unchallenged evidence summarised in (i), (ii) and (iii) above nonetheless required the jury, acting rationally, to have entertained doubt as to the applicant’s guilt.  Plainly they did.  Making full allowance for the advantages enjoyed by the jury, there is a significant possibility in relation to charges one to four that an innocent person has been convicted.”

49. [49]
    Added to these considerations is the advantage the jury enjoyed in hearing the complainant give evidence in person.  The account given by the complainant in respect of Counts 1 to 5 and 7 to 10 was detailed as to location and sequence.  As correctly submitted by the respondent:^[23]

“The complainant provided an account which contained an appropriate level of detail, commensurate to what might be expected given the passage of time and nature of what occurred.  He was able to give a full narrative of each of these first three occasions and his evidence provided a clear picture of the offending.”

50. [50]
    Ground 1 fails.

Ground 2: Inconsistent verdicts

51. [51]
    The principles applicable in determining whether verdicts are inconsistent are well established.  In MacKenzie v The Queen^[24] Gaudron, Gummow and Kirby JJ observed:

“[T]he respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense.  Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted.  If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.  In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt.”

52. [52]
    In MFA v The Queen^[25] Gleeson CJ, Hayne and Callinan JJ stated:

“Since the ultimate question concerns the reasonableness of the jury’s decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case.  Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system.  A number of features of that context were emphasised in MacKenzie.  They include the following.  First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count.  This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part.  Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution.  In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence.  In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant.  This may not be unreasonable.  It does not necessarily involve a rejection of the complainant's evidence.  A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt.  The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution.  A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant.”

53. [53]
    In the present case, the jury were directed in accordance with R v Markuleski.^[26]
54. [54]
    As already observed, the complainant’s evidence in relation to Counts 11 and 12 was of a different quality to that given in relation to the earlier counts.  The alleged offending occurred on a public beach rather than in the relative seclusion of the appellant’s home.  The complainant’s recollection of the beach incident was triggered by a photograph of his father’s car.  This is incongruous with the complainant’s inability to recall which car the appellant and CB used to drive him to the beach on the day in question.  For Counts 11 and 12, the jury were therefore presented with the complainant having a triggered memory which was not the case for the previous offending.  Apart from being a triggered memory, there were other difficulties with the complainant’s evidence in relation to Counts 11 and 12.  He was cross-examined about his previous statement that the offending took place in the warmer months of the year when the effect of his evidence was that the incident must have occurred in a winter month.  A further difficulty is that any alleged sexual touching occurred in the context of a game which involved the complainant swimming between the legs of the appellant while he was submerged under water.  This conduct may readily be distinguished from the circumstances of the previous sexual offending.  As correctly submitted by the respondent:^[27]

“The totality of these features creates a logical basis for the jury to have had a reasonable doubt about these counts while still accepting earlier evidence.”

55. [55]
    As to Count 13, the complainant’s evidence-in-chief is set out in full at paragraph [29] above.  A number of aspects of the complainant’s evidence-in-chief was consistent with the appellant attempting to inappropriately touch the complainant.  The complainant refers to the appellant being sexually provocative and that he pushed her away saying words to the effect that he was not interested.  He refers to the appellant trying to put her hands on him.  His reference to the appellant “running up and down my shorts, trying to get me excited” is not consistent with how Count 13 was particularised.  The complainant further refers to the appellant “trying to touch me on the groin and stomach area”.  The only direct evidence of the appellant touching the complainant’s penis was in response to a leading question from the Crown prosecutor.  It may be accepted therefore that the jury could reasonably have considered that the complainant’s recollection of the offending constituting Count 13 was not sufficiently clear for them to be satisfied beyond reasonable doubt of this count.
56. [56]
    Ground 2 fails.

Ground 3: The failure of the trial judge to allow the appellant’s application pursuant to s 4(2) of the Criminal Law (Sexual Offences) Act 1978

57. [57]
    In the course of cross-examining the complainant, counsel for the appellant made an application pursuant to s 4(2) of the Criminal Law (Sexual Offences) Act 1978 (Qld) (“the Act”) for leave to cross-examine the complainant as to his alleged sexual activities with the appellant’s younger daughter in 1986 when she was 10 years old.  Leave was also sought to cross-examine the younger daughter in relation to these alleged interactions.  After hearing oral submissions, the learned trial judge indicated that she wished to further consider the matter and required written submissions.  This was in circumstances where the Crown prosecutor in oral submissions had initially conceded that leave to cross-examine should be granted.  The Crown’s position altered when written submissions were provided to the trial judge on the following day of trial.
58. [58]
    The appellant’s written submissions at trial identified the nature of the foreshadowed evidence for which leave was sought to cross-examine the complainant.  That evidence was as follows:

    1. when the complainant and the younger daughter interacted as children, the younger daughter had a foam orange trinket that was about 10 centimetres long.
    2. on a few occasions, the complainant would take the trinket off the younger daughter and taunt her about wanting it back.
    3. the complainant would then put the trinket down his pants and tell the younger daughter to retrieve it.
    4. the younger daughter would refuse and say no.
    5. the complainant would then grab the hand of the younger daughter and force her hand into his pants.
59. [59]
    The trial judge refused the application primarily on the basis that she was not satisfied the evidence was a proper matter for cross-examination as to credit.  Her Honour ruled as follows:^[28]

“While the contradiction between the complainant’s evidence about his relationship with [the younger daughter] is a matter going to credit, that can, of course, be explored in the evidence of [the younger daughter] when she is called to give evidence; she is a Crown witness.  Secondly, information provided in conference with [the younger daughter] may tend to prove that the complainant, himself, has committed sexual offences against a child, but it does not advance the defence case in any substantial way.

Further, the complainant [sic] by [the younger daughter] bears little similarity to the allegations the subject of this trial.  They are said to have occurred in the complainant’s teenage years.  The circumstances of the allegations may or may not amount to a criminal offence, and they are vague in nature.  They are not specific about timing in circumstances where the complainant frequented the defendant’s house prior to him moving to Queensland, which was before the alleged offending.  Even if the dates were confined to when he moved to Queensland, it is not evidence that can explain the circumstances in which the offences were committed by the defendant.

Further, in relation to the defendant’s submission that it is relevant to a motive to lie, I am satisfied that the evidence falls short of giving any great weight to that submission.”

60. [60]
    The appellant submits that her Honour’s refusal to grant leave constituted an error of law which resulted in a miscarriage of justice.
61. [61]
    Section 4 of the Act provides:

3. “4
   Special rules limiting particular evidence about sexual offences

3. The following rules shall apply in relation to any examination of witnesses or trial in relation to a sexual offence whether or not the examination or trial relates also to a charge of an offence other than a sexual offence against the same or any other defendant—

3. 1
   The court shall not receive evidence of and shall disallow any question as to the general reputation of the complainant with respect to chastity.

3. 2
   Without leave of the court—

3. (a)
   cross-examination of the complainant shall not be permitted as to the sexual activities of the complainant with any person; and

3. (b)
   evidence shall not be received as to the sexual activities of the complainant with any person.

3. 3
   The court shall not grant leave under rule 2 unless it is satisfied that the evidence sought to be elicited or led has substantial relevance to the facts in issue or is proper matter for cross-examination as to credit.

3. 4
   Evidence relating to or tending to establish the fact that the complainant has engaged in sexual activity with a person or persons must not be regarded as having substantial relevance to the facts in issue only because of any inference it may raise about general disposition.

3. Example of inference about general disposition—

3. an inference that the complainant, because of having engaged in conduct of a sexual nature, is more likely to have consented to the conduct involved in the offence

3. Without prejudice to the substantial relevance of other evidence, evidence of an act or event that is substantially contemporaneous with any offence with which a defendant is charged in an examination of witnesses or a trial or that is part of a sequence of acts or events that explains the circumstances in which such an offence was committed shall be regarded as having substantial relevance to the facts in issue.

3. 5
   Evidence relating to or tending to establish the fact that the complainant has engaged in sexual activity with a person or persons is not proper matter for cross-examination as to credit unless, because of special circumstances, the court considers the evidence would be likely to materially impair confidence in the reliability of the complainant’s evidence.

3. The purpose of this rule is to ensure that a complainant is not regarded as less worthy of belief as a witness only because the complainant has engaged in sexual activity.

3. 6
   An application for leave under rule 2 shall be made in the absence of the jury (if any) and, if the defendant so requests, in the absence of the complainant and shall be determined after the court has allowed such submissions or evidence (sworn or unsworn) as the court considers necessary for the determination of the application.”

62. [62]
    The operation of s 4 was considered by this Court in R v Tribe.^[29]  Mackenzie J made the following observations:^[30]

“It will be seen from [s 4] that there is a blanket exclusion of evidence of general reputation with respect to chastity.  There is an exclusion, unless leave is given, of evidence or cross-examination as to sexual activities.  Leave is not to be given unless one [of] two circumstances exist.  The first is that the evidence sought to be elicited or led has substantial relevance to facts in issue.  If it has no other effect than to raise an inference about the complainant’s general disposition it is excluded.  The second is where the evidence sought to be led or elicited is proper matter for cross-examination as to credit.  Evidence relating to or tending to establish the complainant has engaged in sexual activities is only proper material for cross-examination if, because of special circumstances, the court considers the evidence likely to materially impair confidence in the reliability of the complainant’s evidence.”

63. [63]
    It is uncontentious that the evidence for which leave to cross-examine was sought, was evidence “as to the sexual activities of the complainant” within the meaning of rule 2.
64. [64]
    In the course of oral argument, counsel for the appellant conceded that the evidence sought to be elicited from the complainant in cross-examination could have gone only to credit.^[31]  Absent any suggestion that the evidence sought to be elicited has substantial relevance to facts in issue, the relevant question is whether such evidence is a proper matter for cross-examination as to credit.  That question necessarily falls to be determined by a consideration of rules 3 and 5.
65. [65]
    Rule 3 prohibits a grant of leave unless the court is satisfied that the evidence sought to be elicited is “proper matter for cross-examination as to credit”.  Although that term is not defined in the Act, its meaning is informed by rule 5, which provides that evidence of engaging in sexual activity with another is not proper matter for cross-examination as to credit “unless, because of special circumstances, the court considers the evidence would be likely to materially impair confidence in the reliability of the complainant's evidence”.
66. [66]
    Rule 5 introduces three distinct yet interrelated concepts that require consideration.  The first is the requirement for “special circumstances” by reason of which the evidence “would be likely” materially to impair confidence in the reliability of the complainant’s evidence.  This requirement was considered by Mackenzie J in Tribe:^[32]

“Rule 5 defines in a restrictive way the circumstances in which evidence tending to establish the fact that the complainant has engaged in sexual activities with a person becomes proper matter for cross-examination. The question for the trial judge is whether because of special circumstances the court considers the evidence likely to materially impair confidence in the reliability of the complainant’s evidence. Because a requirement of special circumstances is a component in the process of deciding whether to grant leave it may be inferred that the legislative intent was that there must be something more than a mere tendency to impair confidence in the reliability of the complainant’s evidence.”

67. [67]
    Rule 5 requires a real likelihood that confidence in the reliability of a complainant’s evidence will be materially impaired.  If the evidence sought to be elicited only has a tendency to cause such impairment, leave should not be granted.  It is the existence of “special circumstances” which inform that likelihood.  Any exercise in identifying the existence, and effect, of “special circumstances” must necessarily be undertaken in the context of the case as presented at trial.  As Mackenzie J observed in Tribe:^[33]

“It is not necessary in this case to attempt to define the ambit of s 4 of the Act comprehensively.  In any event, whether special circumstances exist and whether evidence would be likely to “materially” impair confidence in the reliability of a complainant’s evidence involve judgments being made on the basis of facts concerning which the right to cross-examine is sought.”

68. [68]
    The requirement that the impairment “would be likely” has the evident purpose of securing the stated object of rule 5, which is “to ensure that a complainant is not regarded as less worthy of belief as a witness only because the complainant has engaged in sexual activity”.  That is, rule 5 seeks to protect complainants from ordinary cross-examination as to credit by requiring that the evidence sought to be elicited is a “proper matter for cross-examination as to credit”.
69. [69]
    The second concept is the requisite degree of impairment that the evidence sought to be elicited must be likely to cause.  The word “materially” is defined in the Macquarie Dictionary to mean “to an important degree” or “considerably”.  Similarly, the term “material” is defined to mean “of substantial import or much consequence”.  It follows that for the evidence sought to be elicited to be “proper matter for cross examination as to credit”, there must be a likelihood that the evidence will “substantially” or “considerably” impair confidence in the reliability of the complainant’s evidence.
70. [70]
    The third concept is the requirement that the evidence must materially impair confidence in the “reliability” of the complainant’s evidence.  The distinction drawn between credibility and reliability at common law was explained by Nettle and Gordon JJ in IMM v The Queen:^[34]

“… The credibility of a witness was commonly understood as meaning the “truthfulness” of the witness – whether the witness genuinely believed that he or she was telling the truth.  Reliability, on the other hand, referred to the ability of the witness accurately to discern and relay the truth as to an event, including the witness’s ability to observe and remember facts.  For example, if an event occurred a long time ago, that might affect the reliability of the witness because it is generally accepted that memory is prone to fade over time.”

71. [71]
    Having regard to that distinction, the effect of this requirement is that the evidence sought to be elicited will not be “proper matter for cross-examination as to credit” if it goes only to the complainant’s credibility.  Such a requirement is again informed by the stated object of rule 5, in that the complainant’s sexual activities cannot be used to cast doubt on whether he or she is telling the truth unless the circumstances would also be likely to cast doubt (in some substantial or considerable way) on the “reliability” of his or her evidence.
72. [72]
    The appellant submits that the evidence sought to be elicited is a proper matter for cross-examination as to credit because it “raised a motive to lie, namely to account for the complainant’s withdrawal from interacting with the appellant and her children, which he had attributed to the [appellant’s] offending”.^[35]
73. [73]
    This submission was clarified in the course of oral argument as follows:^[36]

“The proposition advanced that this evidence of an episode of sexual conduct arising to the level of sexual offending, perhaps, of the complainant against the … appellant’s child, perhaps, being a motive for him to leave the premise[s] and for him to thereafter give a false narrative to justify that departure should have been properly explored in front of the jury.”

74. [74]
    What is asserted is that the evidence sought to be elicited goes not only to the complainant’s motivation to leave but also to the reliability of his subsequent narrative concerning the appellant.
75. [75]
    The suggested false narrative of the complainant must necessarily include not only his evidence in relation to the conduct of the appellant, but the complaints he made to his mother in 1986, to his former girlfriend in 1997, to his father in mid-1998 and subsequently to police in 2018 and 2020.
76. [76]
    There are a number of difficulties with the appellant’s submission.  First, it is not clear how the evidence sought to be elicited would be likely to affect the reliability of the complainant’s evidence concerning the appellant’s conduct.  The submission does not establish how the evidence sought to be elicited affected “the ability of the [complainant] accurately to discern and relay the truth as to [the] event[s]”^[37] involving the appellant.  At its highest, the evidence sought to be elicited reveals a motive at the time of the complainant’s departure for the complainant to give a different reason for leaving which, according to the appellant, might not have been true.  On the appellant’s submission, this would have affected the complainant’s credit and whether his evidence as to the alleged offending by the appellant ought to be accepted.  The difficulty for the appellant is that the existence of an alternative reason as to why the complainant decided to leave does not, in the context of the case, constitute “special circumstances”.  It is not to the point that the complainant may have had more than one reason to leave.  The appellant has not identified any “special circumstances” by reason of which the existence of more than one motive for the complainant to leave would be likely to materially impair confidence in the reliability of the complainant’s evidence.  In circumstances where the evidence sought to be elicited does not rise to that threshold, this is the type of cross-examination as to credit which rule 5 has the express purpose of restricting.
77. [77]
    Secondly, there was no evidence that the appellant’s younger daughter, either in 1986 or subsequently, made a complaint to any person, including authorities, in relation to the complainant’s alleged conduct.  As correctly submitted by the respondent:^[38]

“… [A]s there had been no complaint on the part of [the appellant’s younger daughter] about the alleged acts, there could be no suggestion that the complainant ought to have known about these allegations.  The evidence from the complainant’s mother … demonstrated that the complainant had spoken of the sexual abuse by the appellant close in time to when the offending was alleged to have occurred.  It therefore is difficult to see how that conduct could rationally have provided a motivation for the complainant to lie in his evidence against the appellant.”

78. [78]
    In such circumstances it would defy both logic and human nature for the complainant to maintain and ultimately pursue his allegedly false complaint against the appellant.
79. [79]
    Thirdly, as observed by the trial judge, the evidence sought to be elicited was vague in nature and did not necessarily amount to a criminal offence.  The difficulty which arises for the appellant from these observations, which reflects upon the quality of the evidence, is how such evidence could be considered to be likely to materially impair confidence in the reliability of the complainant’s evidence concerning the appellant’s conduct.
80. [80]
    The appellant has failed to establish any error in the trial judge’s decision to refuse leave to cross-examine the complainant or the younger daughter as to the complainant’s alleged sexual activities with her.
81. [81]
    Ground 3 fails.

Disposition

82. [82]
    I propose the following order:

1. Appeal against conviction be dismissed.

83. [83]
    BRADLEY J:  I have assessed the sufficiency and quality of the evidence adduced at trial.  Having regard to the time that had elapsed, the complainant’s evidence in respect of counts 1 to 5 and 7 to 10 was such that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of those offences, notwithstanding the inconsistencies identified by the appellant.
84. [84]
    I agree with the conclusions of Flanagan JA with respect to each of the three grounds of appeal and with the order his Honour proposes.