R v ABF; R v MDK[2023] QCA 171

SUPREME COURT OF QUEENSLAND

1. [1]
   FLANAGAN JA:  I agree with Boddice JA.

2. [2]
   BODDICE JA:  On 20 October 2021, a jury found MDK (“MDK”) guilty of one count of maintaining a sexual relationship with a child, five counts of carnal knowledge of a child under 16, 12 counts of indecent treatment of a child under 16 and one count of sodomy.
3. [3]
   On the same date, a jury found ABF (“ABF”) guilty of five counts of indecent treatment of a child under 16.
4. [4]
   On 20 October 2021, MDK was sentenced to imprisonment for two years on the count of maintaining a sexual relationship with a child and lesser concurrent periods of imprisonment for the remaining counts.  It was ordered that those sentences for imprisonment be served cumulatively on sentences presently being served by him.
5. [5]
   On the same date, ABF was sentenced to imprisonment for 18 months on each count of indecent treatment of a child under 16 to be served concurrently with each other as well as sentences presently being served.  A parole eligibility date was fixed at 28 September 2028.
6. [6]
   MDK and ABF appeal their convictions.  MDK also seeks leave to appeal his sentence.
7. [7]
   MDK relies on two grounds in the appeal against his convictions.  First, that the verdicts were unreasonable and cannot be supported having regard to the whole of the evidence.  Second, that a miscarriage of justice occurred because the learned primary judge erred in law in failing to put the accused’s case accurately and fairly to the jury.  Should leave be granted to appeal against sentence, MDK relies on one ground, namely, that the sentence imposed was manifestly excessive having regard to the totality principle.
8. [8]
   ABF relies on one ground for her appeal against conviction, namely that the verdict is unreasonable and cannot be supported having regard to the whole of the evidence.

Background

9. [9]
   All of the offences were committed in 2012 and 2013.  At the relevant time, MDK and ABF were in a relationship.
10. [10]
    In the case of MDK, the count of maintaining a sexual relationship with a child under 16 (count 1), three of the counts of carnal knowledge of a child under 16 (counts 2, 10 and 13), eight of the counts of indecent treatment of a child under 16 (counts 3–9 and 11) and the count of sodomy (count 12), pertained to the same female child complainant, AP, who was aged 14 to 15 years.  Those offences were committed between 1 January 2012 and 29 April 2013.
11. [11]
    ABF’s five counts of indecent treatment of a child under 16 (counts 4, 5, 8, 9 and 11), were charged jointly with MDK and pertained to AP.
12. [12]
    The four remaining counts of indecent treatment of a child under 16 (counts 14, 16, 17 and 18) and the two remaining counts of carnal knowledge of a child under 16 (counts 15 and 19), of which MDK was convicted, related to a separate female child complainant, SK.  Those offences were committed between 1 January 2013 and 31 May 2013, when SK was aged 14 to 15 years.
13. [13]
    A central issue for determination at trial was whether there was evidence which established, on the balance of probabilities, a belief by MDK and/or ABF, on reasonable grounds, that each complainant was 16 years or over.

Counts

14. [14]
    At trial, the Crown particularised the prosecution case in the following terms.
15. [15]
    Count 1 was particularised as MDK, between 1 January 2012 and 29 April 2013, maintaining a relationship with AP, when she was under the age of 16 years and that during this period he committed more than one unlawful sexual act namely, the acts giving rise to each of counts 2–13, together with uncharged acts of penetration of AP’s genitals, anus or mouth with his penis; bringing his mouth into contact with her genitalia; causing or permitting AP’s mouth to come into contact with his genitals; wilfully exposing AP to indecent acts namely, penetrating the genitalia or anus of ABF with his penis; aiding or encouraging ABF to bring her mouth into contact with AP’s genitalia; and aiding or encouraging ABF to penetrate the genitalia of AP with her finger or fingers.
16. [16]
    Count 2 was referred to as the “motel room incident” and particularised as one night in about March 2012, when MDK and ABF collected both AP and SK and took them to a nearby motel.  Whilst in that motel, MDK touched AP’s body with his hand or hands, including on her breasts and kissed her, before positioning himself in front of her and penetrating her genitalia with his penis, as well as positioning himself behind her and penetrating her genitalia with his penis.
17. [17]
    Count 3 was particularised as MDK, in early 2012, before AP had turned 15, taking her to a nudist beach and then to a motel where MDK and AP were naked together in the shower recess, before MDK kissed and licked her genitals with his mouth and tongue.
18. [18]
    Counts 4 and 5 were particularised as, after MDK invited ABF into the shower recess, ABF kissed and licked AP’s genitals (count 4) before penetrating her genitals with a finger or fingers (count 5).  MDK was a party to counts 4 and 5 by aiding or by doing acts for the purposes of enabling or aiding ABF to commit the offences.
19. [19]
    Count 6 was particularised as, whilst ABF was committing counts 4 and 5, MDK touched and sucked AP’s breasts.
20. [20]
    Counts 7, 8 and 9 were particularised as, after ABF withdrew her finger or fingers from AP’s genitalia, but whilst all three remained naked in the shower recess, AP and ABF kissed and sucked MDK’s penis (counts 7 and 8).  ABF then kissed AP on the mouth, penetrating her mouth with her tongue and touched her body (count 9).  MDK aided or encouraged ABF in respect of count 9 by his participation and continued presence.
21. [21]
    Counts 10 and 11 were particularised as, while all three remained in the shower recess, MDK penetrated AP’s genitalia from behind with his penis (count 10), before MDK, in front of AP, penetrated ABF’s anus or her genitalia from behind with his penis (count 11).
22. [22]
    At trial, counts 3 to 11 inclusive were referred to as the “shower recess incident”.
23. [23]
    Counts 12 and 13 were particularised as occurring on a Saturday night between April and December 2012, when AP was alone in a car with MDK, in bushland near the Noosa Civic Centre.  MDK penetrated her genitals with his penis before proposing anal intercourse and penetrating her anus with his penis (count 12), and again penetrating her genitalia with his penis (both occasions of penetration of AP’s genitals formed count 13).  These counts were referred to at trial as the “parked car incident”.
24. [24]
    Counts 14, 15 and 16 were particularised to have occurred at the start of 2013, after SK spent time at a nudist beach with AP, MDK and ABF.  On the drive back, SK masturbated MDK’s penis (count 14).  Later, whilst MDK and SK were alone in the car, MDK penetrated her genitalia with his penis (count 15), before performing oral sex upon her by licking her genitals (count 16).  At trial, those three counts were referred to as the “drive up incident”.
25. [25]
    Counts 17–19 were particularised as having occurred in April or May 2013, at the time of a birthday celebration for MDK.  MDK masturbated himself before kissing SK and penetrating her genitalia with a finger or fingers (count 17).  SK then performed oral sex upon MDK (count 18), before MDK penetrated her genitalia with his penis (count 19).  These counts were referred to at trial as the “birthday party incident”.

Evidence

26. [26]
    AP gave a statement to police on 10 November 2013.  It was read to the jury.  AP said she met MDK on a beach on the Sunshine Coast when she was in grade 9 and aged 14 years. As she was leaving the beach, she dropped her iPod and MDK’s then-wife, LD, gave it back to her.  LD invited her to a house party the following weekend.  AP said she would need to find a way up to the Sunshine Coast.  LD gave her the Facebook names of LD and of MDK to contact to organise transport.
27. [27]
    The next day, AP sent two Facebook friend requests to MDK and his wife, which were accepted.  Whilst she did not go to the party, she remained friendly with them on Facebook, seeing what they were doing and liking their posts.  On Facebook, AP had the day and month of her birthday and photographs of AP wearing a school uniform.  Her Facebook status also indicated her attending a high school in 2011.  Around March 2012, AP received an inbox message on Facebook from LD.  LD invited AP and her friend, SK, to their house on the Sunshine Coast for drinks.  AP said they needed transport.  LD replied instantly, saying ABF would pick them up and MDK would be in the car with her.
28. [28]
    AP said she did not tell her guardian, SS, with whom she was living, that she and SK were going to the Sunshine Coast.  She told him she was visiting a friend’s house.  She sent a message to LD, via Facebook, arranging to meet at the nearby shops.  ABF and MDK drove them to the Sunshine Coast.  MDK brought out some “joints and Alize and Sprit” which AP and SK shared during the drive.^[1]  AP spoke to MDK about how SS thought she was staying at her mother’s house that night, because “I would have got in trouble with [SS] and school”.^[2]
29. [29]
    AP said the residence on the Sunshine Coast was a granny flat.  MDK decided they should go to a motel as there was not enough room.  LD did not come to the motel.  She remained with the children.  ABF drove MDK, AP and SK to the motel.  ABF left saying she would pick them up the next day.
30. [30]
    Early the next morning, MDK woke AP asking if she wanted “a puff of joint”.^[3]  She followed MDK into the bedroom and puffed on the joint.  MDK started feeling her legs and breasts before kissing her on the mouth and putting his tongue inside her mouth.  MDK then used both hands to remove her underwear.  She saw his erect penis.  He was not wearing a condom.  She felt his penis penetrate her vagina.  MDK was kissing her at the same time.  After a couple of minutes, MDK withdrew his penis, turned AP over placing her on her hands and knees, then pushed his erect penis back inside her vagina.  MDK said, “I’m coming” and she felt a warm rush inside her vagina (count 2).
31. [31]
    AP said after she went outside she told SK, “[MDK] and I had sex”.^[4]  SK replied, “Yeah, I could hear you cunts”.  AP said they listened to music until ABF arrived and drove them back to the granny flat.  At around lunch time, ABF and MDK drove them back to SK’s residence.  MDK kissed each of them goodbye.  It was with an open mouth.  MDK said, “Hopefully see you soon”.^[5]  The next day, MDK messaged AP saying he missed her.  MDK asked when he was going to see her next.  AP said MDK was always asking the two of them to come up together to the Sunshine Coast.
32. [32]
    AP said MDK purchased a prepaid mobile telephone for her, for her birthday in April 2012 (age 15).  MDK would also organise for ABF to pick them up on weekends.  They would usually spend a night or two at a motel.  MDK had sexual intercourse with AP when she visited him on the Sunshine Coast.
33. [33]
    AP said when she visited the Sunshine Coast, MDK and ABF would go to a nudist beach.  She recalled going there four times, twice with MDK and ABF, once with SK and MDK, and once with just MDK.  On one of the visits to the nudist beach with MDK and ABF, before her birthday in 2012, AP said she and MDK were naked.  On that occasion, MDK, ABF and AP went back to a motel.
34. [34]
    At the motel, MDK and AP had a shower together.  MDK kissed her with an open mouth.  MDK also knelt down and kissed her genitalia with his mouth and tongue (count 3).  MDK then called ABF into the bathroom.  ABF undressed and joined them in the shower.  ABF started kissing and licking AP’s vagina before penetrating it with two of her fingers (counts 4 and 5).  MDK touched and sucked AP’s breasts at the same time (count 6).  After ABF removed her fingers, AP knelt down beside ABF and MDK moved AP’s head towards his erect penis.  ABF and AP started kissing and sucking MDK’s penis (counts 7 and 8).  ABF also kissed AP on her lips with her open mouth and put her tongue inside her mouth and touched her body (count 9).  MDK then stood AP up and penetrated her vagina from behind with his penis (count 10).  After a while, he withdrew his penis and moved to ABF, penetrating her anus with his penis (count 11).
35. [35]
    AP said after her 15^th birthday in 2012, MDK would allow her to drive ABF’s car when they were staying on weekends and living in the motel.  AP said on a Saturday night, on a weekend after her 15^th birthday, but before the end of 2012,  she drove MDK in ABF’s car to a bushland spot.  He started kissing her with his open mouth, before pushing his penis into her vagina.  After a while, MDK stopped, placed AP on her hands and knees and said, “Lets do Anal.”^[6]  AP said, “No.”  After MDK asked her many times, she gave in.  MDK took some moisturiser from the glovebox, put it on is penis and slowly inserted his erect penis into her anus.  AP said it was really painful.  AP told him to stop and he slowly pulled his penis out.  MDK then wiped his penis with face wipes before inserting it into AP’s vagina and ejaculating into her vagina (counts 12 and 13).
36. [36]
    AP said she and SK received an invitation via Facebook to attend MDK’s birthday party.  AP did not want to go as she was “over what was happening to [her] with, the sex which stated when [she] was around fourteen and fifteen years old”.^[7]  However, ABF messaged her via Facebook and arranged to pick up AP and SK.  They arrived at MDK’s house at about 8.00 pm.
37. [37]
    When AP woke up in the morning, she went outside into the back yard.  Whilst there she could hear moaning and slapping sounds.  After the sounds stopped, SK came outside and said, “I had sex with [MDK] and now he wants you.”^[8]  AP went inside.  MDK started kissing AP with an open mouth.  MDK then kissed her vagina, before pushing his erect penis into her vagina.  MDK was not wearing a condom.  Whilst this was happening, LD walked into the kitchen.  AP said LD looked at her, but did not say anything.  MDK continued to have sex and after ejaculating, withdrew his penis.
38. [38]
    AP said on 8 November 2013, she received a message from SS that police wished to speak to her.  She attended the police station on 11 November 2013 and provided the statement.
39. [39]
    In oral evidence, AP confirmed that the joint was marijuana; that Alize was an alcoholic liqueur; and that when she first met LD, she did not meet MDK until a year later.  AP said her last contact with MDK was towards the end of 2015, on Facebook.  She accepted when she first met MDK she was about his height.  She also accepted she sent MDK messages in August and September 2015, telling him she wanted to withdraw her complaint against him.
40. [40]
    AP agreed she never told LD how old she was during their first conversation.  She accepted her Facebook profile did not contain her year of birth.  She agreed she regularly wrote on Facebook in 2012 about drinking alcohol and going to parties.  She agreed she lied to SS about where she was going and who she was with and did so often.  She accepted when she first met MDK and ABF, she had her own cigarettes.  She accepted she did not refuse the joint or alcohol offered by MDK. She also accepted that she bragged to SK about having sex with MDK; and that while she was at the nudist beach, MDK would sometimes touch her, in the open where other people could see.  AP denied that ABF had never kissed her genitals, inserted her fingers into her genitals, or kissed her on the mouth.
41. [41]
    AP accepted she continued to use cannabis after she stopped seeing MDK and ABF.  She stopped in about 2018, when she had her first child.  She agreed that on the occasions these events took place, she was using a combination of alcohol and cannabis.  Both those substances could have an effect on memory.  She could not remember telling ABF that she was 18.  She accepted when she was around ABF she was never wearing a school uniform.  She denied she was in the habit of deliberately letting people think she was older.
42. [42]
    AP agreed when she spoke to police in 2013, she did not mention an occasion on which ABF was taking photographs of her at a nudist beach.  She denied she told police these things to get herself out of trouble.  She denied the passage of time, together with the smoking of cannabis and the drinking of alcohol meant her memory could not be accurate.  She accepted at the time she met MDK she had developed breasts.
43. [43]
    SK spoke to police on 10 November 2013.  That interview was recorded and played to the jury.  SK told police she had come to talk to them about MDK and ‘about we’ve done’.^[9]  She said MDK and her had sexual intercourse.
44. [44]
    SK said she first met MDK when she was with AP, around March 2012.  They told her mother they were going to see some friends.  ABF and MDK took them to the Sunshine Coast.  They drank all the way.  They first went to a house, but then booked a motel.  AP told her she had sexual intercourse with MDK.  The second time she met them was in 2013.  MDK told her he “‘didn’t want me to go home’ well, cause he didn’t have sex so we had sex and that’s when everything happened”.^[10]  The last time she saw them was in March 2013, around MDK’s birthday.  SK communicated on Facebook with MDK and LD.  The last time she saw MDK was in April or May 2013.
45. [45]
    SK said on the first occasion, AP arranged for ABF to pick them up from Brisbane.  She was driving a grey hatchback Subaru.  MDK was in the front.  The motel was 15 minutes down the road from where they lived in a granny flat behind a house.  Whilst at the motel, they drank alcohol and smoked cannabis.  When SK woke up, AP was blowing a joint.  AP said they had sexual intercourse.  She said, “[MDK] has a big dick”.^[11]
46. [46]
    SK said the second time she met MDK and ABF was when they were invited to MDK’s birthday party.  ABF drove AP and SK from Brisbane.  They drank alcohol and smoked cannabis.  In the morning, after AP went to the toilet, MDK asked SK if she was okay.  He had no pants on.  SK said, “we just started kissing and he, yeah he finger me and I gave, gave him oral, yeah oral”.^[12]  SK said they then had sex (counts 17–19).  MDK was not wearing a condom.  He asked if he could “cum in me” and she said “no”.  He then “cummed on my leg”.^[13]  SK said MDK then asked her to get AP.  She heard MDK having sex with AP.  Afterwards, AP told her she had sex with MDK.
47. [47]
    SK said she had also had sex with MDK in the car.  SK said it was around 9.00 – 10.00 pm and they were drunk and a bit stoned.  It went on for about 10 minutes.  She was pretty sure it was in 2013.  MDK jumped into the back seat.  They started kissing.  MDK put his hands down her pants and she put her hands down his pants and “was just wanking him off”.^[14]  MDK had asked ABF if she could stop somewhere.  They found a park.  AP and ABF sat in the park.  SK said MDK put his penis in her vagina.  MDK was touching SK’s breasts and kissing her down her neck.  He also “licked me out” before they started having sex again (counts 14–16).  MDK came on her leg again.  After they cleaned themselves up, he kissed her on the lips and gave her a hug before AP and ABF hopped back into the car.
48. [48]
    SK said there was also an occasion when they went to a nudist beach.  She, AP, MDK and ABF were all nude.  MDK was kissing her and wanted to have sex at the beach, but there were other people around.  They were there for an hour or so and photographs were taken of AP and SK naked.
49. [49]
    In cross-examination, SK agreed that the first time she met MDK and ABF, she had her own alcohol and cigarettes.  She denied having some cannabis.  She denied AP had cannabis.  She accepted they smoked cannabis that night.  Most times they saw MDK and ABF, SK had her own alcohol.
50. [50]
    SK said on the first occasion they drove with MDK and ABF, MBF offered them a joint and an Alize alcoholic drink.  She did not say no to either.  She agreed they continued smoking joints and drinking alcohol at the motel that night.  She agreed the next morning AP was bragging about having sex with MDK.
51. [51]
    SK agreed on the second occasion she met MDK they went to a nudist beach and again drank alcohol and smoked marijuana.  Never once did she say to MDK or ABF that she was too young to drink alcohol.  She accepted at the nudist beach MDK would kiss her and touch her in the open.
52. [52]
    SK accepted on the last occasion she saw MDK, at his birthday party in May 2013, she gave him a hug and told him she missed him.  She agreed she had a Facebook profile which showed she was born in 1995.  SK said that was probably so she could use Facebook; you had to be 18 years of age.  She accepted during 2012 and 2013, she regularly posted comments on Facebook about smoking cannabis, drinking alcohol and smoking cigarettes.  SK said she never lied about her age, but agreed if she was born in 1995, she would have turned 17 in 2012 and 18 in 2013.
53. [53]
    SS said in 2011, when he and AP were at a Sunshine Coast beach, AP dropped something.  A woman picked it up and followed AP up the beach.  They started talking.  There was a man and three children with that woman.  He never saw the male again.  AP did not ever complain to him about anyone’s treatment of her.  He later heard of some allegations of sexual offences.
54. [54]
    In cross-examination, SS said he had a conversation with the woman.  It was just hello.  She never told him she was a school friend of AP.  AP never told him they were school friends.  SS accepted he had dropped AP and SK at the Sunshine Coast on three or four occasions.  On every occasion, that woman was present when he dropped them off.  He did not ever see AP leaving the house with alcohol.  He saw her once with a cigarette.  He described AP as “always a little bit tubby and she looks like a woman now; nothing like she did.  She looked kind of young back then.  She still looked like a little girl to me that’s for sure”.^[15]
55. [55]
    LD gave evidence that in 2012, she was living on the Sunshine Coast with MDK, ABF and three children.  At that stage, she had been in a relationship with MDK for almost 10 years.  She was 23 years of age in 2012.  In mid-2012, they moved to another Sunshine Coast address.  The new address had a granny flat.
56. [56]
    LD said she met AP in 2012, when she returned an iPod that AP had dropped on the beach.  LD was at the beach with MDK and their children.  LD became Facebook friends with AP after exchanging numbers.  It was MDK’s idea, but LD instigated it.  LD would message her and liaise with AP and SS for AP to visit the Sunshine Coast.  She extended an invitation to come to the Sunshine Coast on 10 to 20 occasions.  AP accepted most, but not all invitations.  The invitations were extended via Facebook, text message or phone call.  It was MDK’s idea to initiate those invitations.  It was not within LD’s interest to maintain the contact.  LD said, as far as she was aware, she was the only person having contact with AP via Facebook; there were no group chats.
57. [57]
    LD said she saw AP on most occasions that AP travelled to the Sunshine Coast.  There were several occasions when she saw her at their residence.  On one occasion in 2012, LD saw sexual interaction between AP and MDK on a couch.  MDK was performing oral sex on AP.  There was another occasion prior to that when LD had seen them under the covers and their clothes were on the floor.
58. [58]
    LD said she saw SK when she accompanied AP on a few visits.  She was aware SK had a Facebook page, but did not ever access it.  Her main interaction was with AP.  She was not present when anyone else accessed SK’s Facebook page, or when anyone else accessed AP’s Facebook page.
59. [59]
    In cross-examination, LD accepted that in her police statement she said it was about a year after their first interaction that AP came to their house.  LD provided AP with her Facebook name, not MDK’s.  She had no knowledge as to whether MDK and AP were Facebook friends.  AP never told her how old she was and SS never told her AP’s age.  The only discussion she had with AP with regard to age was in early 2013, when AP told her she had just turned 16 years old.  LD communicated that to MDK.  Prior to that, she had not said anything to MDK because she did not know AP’s age.  LD accepted she told police that AP had told her to tell SS she was a school friend of AP.
60. [60]
    SK’s mother, RC, gave evidence that in 2012 and 2013, SK was living in Redcliffe.  One of her friends was AP.  At some point, RC became aware of some sexual behaviour involving SK.  SK never mentioned anything to her.  She only found out in conversations with police.  Once police became involved, RC said she remembered an occasion when SS rang to ask if SK could stay with AP and AP’s uncle on the Sunshine Coast.  RC was not happy as she did not know him.  SS said he did not know him, but “He was here and he seemed like a nice guy”.^[16]
61. [61]
    RC said she spoke to AP.  AP said the man was her uncle.  Later, they all turned up at her house.  There was a female with them.  They arrived by a white car.  RC said, “I was just walking in when I noticed a white car coming up to our house.  We lived in a complex.  So you either had to park in a visitors car park or park right outside our door.  I walked straight inside.  I didn’t know that the white car was coming to our house.  But as I got to the front door to open it to go inside, [AP] and [SK] walked out of – or hopped out of the car.  And then both of them – and I walked in because I’d seen them.  And I said what are you two girls up to.  And then aunty and uncle walked in with them.”^[17]
62. [62]
    RC said the male and the female said they knew RC was apprehensive because SK was so young and AP was young, but they would look after both of them.  They gave RC a phone number.  They guaranteed they would either answer on the first try or ring back straight away.  RC said she was not happy, but let SK and AP go.  RC did ring them twice.  The first time they answered.  The second time they did not, but they texted back straight away and said they were in the pool.
63. [63]
    RC said during the conversation with the male and female she said, “you know they’re only young.  They’re only 13 or 14 years old”.^[18]  The female said, “We know.”^[19]  The male was in a position to hear the female, as they were standing next to each other.  RC believed that conversation occurred near the end of 2012.
64. [64]
    In cross-examination, RC said she was absolutely certain it was a white car.  She accepted she first provided a statement to police in February 2017.  In that statement, she never mentioned anything about a conversation about the male and female being aware her daughter was 13 going on 14 years old.  She said her exact words were, “Do you know they’re 13 and 14?”^[20]  RC did not accept she never spoke to the male person; they were both there.
65. [65]
    RC said police showed her a photograph of MDK.  She checked SK’s Facebook profile and noticed he was on her profile.  She asked SK, “This is [AP’s] uncle, wasn’t it?”^[21]  She agreed she saw AB’s Facebook posts describing her being stoned and drinking alcohol.
66. [66]
    RC accepted that in her statement to police she said the male and female were introduced by AP as her aunty and uncle.  Neither the male or the female introduced themselves as aunty and uncle.  They were walking behind the girls when AP introduced them.  She could not recall whether she told the prosecutor that it was the male, not the female, who responded to the conversation about the girl’s age.  When AP introduced them as her aunt and uncle, the male said something about not having seen AP for a while, but that he kept in contact and so he knew SK.
67. [67]
    At the conclusion of the prosecution case, there were a number of admissions made.  Relevantly, they included the dates of birth of AP, SK, MDK and ABF; that neither AP nor SK made a complaint about any of the sexual activity prior to making statements to police; that LD resided with MDK and their two daughters in rented accommodation at Sunshine Beach from January 2012 until May 2012 and at Noosaville from about 27 May 2012 until May 2013; and that MDK and ABF only had contact with AP and SK while living at those addresses.
68. [68]
    Neither MDK nor ABF gave, or called evidence at trial.

Legal principles

69. [69]
    In determining a ground of appeal that a jury verdict is unreasonable, each member of an appellate court is required to undertake an independent assessment of the record to determine whether, on a consideration of the evidence as a whole, it was open to the jury to be satisfied of the appellant’s guilt of the offence, beyond reasonable doubt.^[22]
70. [70]
    In undertaking that task, due regard is to be accorded to the role of a jury in a criminal trial.^[23]  However, if, in undertaking that independent assessment, the appellate court is satisfied there are inconsistencies, discrepancies, inadequacies or other evidence which, even allowing for the advantages enjoyed by the jury, are of such a nature that a reasonable doubt ought to have been entertained, the verdict will be unreasonable.^[24]
71. [71]
    A ground of appeal that a trial judge’s summing up failed to adequately present the defence case, requires a consideration of the summing up, in the context of the issues at trial and its entirety.^[25]  Where, as here, the appellant was represented by counsel and no re-direction was sought, such a ground of appeal will only succeed if the appellate court is satisfied that there has been a miscarriage of justice, in that the appellant was deprived of a fair chance of acquittal.

Consideration

MDK’s conviction appeal

72. [72]
    Whilst MDK submits that the evidence of AP and SK contained discrepancies which called into question their reliability and credibility, and further, that the evidence supported a conclusion, on the balance of probabilities, that he had a belief, on reasonable grounds, that both AP and SK were over the age of 16 years, a consideration of the evidence as a whole, supports a conclusion that it was open for a jury to find that MDK was guilty of each of the offences, beyond a reasonable doubt.
73. [73]
    First, both AP and SK were consistent in their evidence.  Each gave direct evidence supportive of the particulars for each of the counts preferred against MDK.  Neither’s account was shaken in any material way in cross-examination such that there is no proper basis to conclude a jury ought to have entertained a reasonable doubt as to either’s reliability and credibility.
74. [74]
    Second, there was independent evidence to support the circumstances of AP and SK being in the company of MDK and ABF, including as to the circumstances in which AP first met them and as to the contact between them thereafter, including that AP and SK travelled regularly to stay with them.
75. [75]
    Third, there was evidence from which it could be concluded that it was more probable than not that MDK did not have a belief, on reasonable grounds, that either AP or SK was over 16 years of age.  The fact that each of their Facebook profiles had posts consistent with their regular usage of alcohol and illicit drugs, that both AP and SK regularly brought alcohol and cigarettes and attended a nudist beach, and, in the case of SK, a date of birth suggestive of her being over the age of 16 years, had to be balanced against the remaining evidence.  In particular, that remaining evidence included SS’s evidence as to the youthfulness of AP’s appearance and RC’s evidence, albeit challenged in cross-examination, of an express conversation with a male and a female, to the effect they were 13 and 14 years of age.
76. [76]
    MDK submits that conversation could not have occurred because at the time RC said the conversation occurred, SK was already 14 years of age and AP was older.  That was ultimately a matter for the jury, when assessing RC’s reliability.  It was open for the jury to accept RC’s evidence as to the conversation and as to MDK’s presence at the time of it, but find her memory as to its timing to be mistaken.  A conclusion that RC was mistaken as to the timing did not compel a conclusion that it was not open to the jury to accept RC’s evidence as to this conversation as reliable and credible.
77. [77]
    MDK also submits that RC only identified him as the uncle after police had shown his photograph and RC had queried with SK whether he was the male who was AP’s uncle.  However, RC’s evidence of identification had to be considered in the context of all of the evidence, which overwhelmingly supported a conclusion that it was MDK and ABF who picked up AP and SK on the day in question.  Nothing in RC’s evidence compelled a conclusion that RC’s identification of MDK was unreliable.
78. [78]
    As it was open, on a consideration of the evidence as a whole, to be satisfied on the balance of probabilities, that MDK did not have a belief, on reasonable grounds that either AP or SK were over 16 years of age and there was clear, credible evidence of each of the acts relied upon to support each of the counts, it was open to conclude that MDK was guilty of each of the counts, beyond reasonable doubt.
79. [79]
    Further, ancillary to this ground of appeal, MDK submits a miscarriage of justice has occurred given the inadmissibility of RC’s evidence.  However, RC gave direct evidence, led without objection, to the effect that, at least from the end of 2012, MDK was aware of the age of each of the complainants.  Such evidence was relevant and probative and, therefore, plainly admissible.
80. [80]
    The verdicts were not unreasonable.  Ground 1 fails.^[26]
81. [81]
    MDK’s second ground of appeal requires a consideration of the summing up.  Relevantly, the trial judge said:

“… I want to mention, now, some of the evidence that may assist you in relation to what I have called throughout the Defence the question of whether either Defendant has proved it is more probable than not they believed either [AP] or [SK] was over 16 or over 18 for count 12.  Remember this arises only if you are satisfied beyond reasonable doubt the Prosecution have proved the elements or the ingredients of the particular offence that you are considering.  If you are satisfied, you will need to consider the Defence.  So it is for the Defendant, whichever one it may be, to prove the Defence but that is, as I have said a lot of times now, on the balance of probabilities.

So while it is for the Defendant to prove the Defence, that does not mean, of course, they have to give evidence.  Both have chosen not to give evidence.  The Defendants argue, as they are entitled to, that the evidence that was led in the course of the Prosecution case is sufficient to prove the Defence.  So merely because I talk about them having to prove it, it does not mean that you can reason, oh, well, they did not get in the witness box and tell me about it, it cannot be proved.  You look to the evidence as it has been led to answer the question of whether there is proof on the balance of probabilities that either one or both Defendant had the requisite belief on reasonable grounds.

Whether or not someone has a belief is something that can be inferred from the circumstances.  So it is not necessary that there be direct evidence.  You do not have to have someone directly saying I believed in X.  You can look at all of the circumstances and, applying the process I have mentioned earlier, reach a conclusion or inference based on the facts as you find them to be.  Whether the evidence is sufficient to permit you to infer that either Defendant had the relevant belief is, of course, a matter for you to assess.  The focus must be on the Defendant’s belief and whether there were reasonable grounds for holding that belief.  It is not a question of whether you or some other reasonable person in the same circumstances would hold that belief.  It is whether the Defendant held the belief and whether you think there were reasonable grounds for holding it and, once again, it is a matter for your judgment and assessment to consider that in light of all of the evidence.

So let me remind you of some of the evidence.  I hope I have captured the relevant parts but keep in mind what I have said: you decide the case on all of the evidence, not just the bits that I am reminding you of.”^[27]

82. [82]
    The trial judge then went on to refer to the cross-examination of AP, during which AP denied a suggestion she had told ABF she was 18 years of age, but later said she did not remember; as well as the evidence that AP was someone who had cigarettes, who drank, who used cannabis and who had no year of birth on her Facebook profile.  The trial judge also referred to a conversation, which AP denied never took place, to the effect that AP told MDK that SS thought she was staying at her mum’s house because she would have gotten in trouble if he knew where she was.
83. [83]
    The trial judge also referred to evidence that both AP and SK had attended the nudist beach, at which MDK had openly behaved in a way which might be called broadly sexual behaviour, unconcerned that other people were in the area, suggestive of a conclusion that MDK behaved that way because he must not have thought they were young girls.
84. [84]
    The trial judge referred the jury to evidence that SK was smoking, drinking and engaging in sexual behaviour at the beach and that her Facebook page gave her year of birth as 1995, noting that something for the jury to think about was whether anyone actually saw that entry on the Facebook page.
85. [85]
    The trial judge also referred the jury to the evidence of SS, describing AP’s physical appearance that she “looked kind of young back then.  She still looked like a little girl to me, that’s for sure”.^[28]  The primary judge also reminded the jury of LD’s evidence that she had not spoken to AP about her age until some point in early 2013, when AP told her she had turned 16 and that LD had mentioned it to MDK, although she could not say when and where.
86. [86]
    The primary judge also reminded the jury of RC’s evidence of the conversation with the male and female when they attended to take AP and SK to the Sunshine Coast.  On that matter, the primary judge said to the jury:

“… And finally there was some evidence from [RC] that I will remind you of and this related to when she said a man and a woman describing themselves as [AP’s] uncle’s and aunt came in a white car to pick up the girls to take them to the Sunshine Coast.  [RC] says that she was talking about the girls, told both of these people that the girls were young, they were only 13 or 14, and her first response was that they said, ‘We know’, but then clarified to say that she was pretty sure that it was the female and the male was standing next to her.

Now, there is something of an issue about whether those two people were the two Defendants or someone else, so that it something which you will need to consider in light of the arguments that have been presented about that but the Prosecution, of course, points to that as saying, well, this was at a later stage, it seems, but at a later stage, they were told the girls were 13 or 14 and the response was, in effect, we know, that is, we already know that.  That is the evidence that I wanted to mention to you as far as that topic is concerned.  Keep in mind, as I have said, that you decide the case based on all of the evidence.”^[29]

87. [87]
    Having regard to the evidence and the issues at trial, that summing up fairly and concisely reminded the jury of the case to be considered by it, in respect of MDK.  There is no rational basis upon which it could be concluded that the summing up failed to adequately present MDK’s case.
88. [88]
    Ground 2 also fails.

ABF’s appeal

89. [89]
    Whilst the counts against ABF were charged jointly with MDK, the jury was specifically directed they must consider each case separately.  In doing so, a factor to be considered by the jury was that it was put to AP that the events the subject of the counts involving ABF never took place and that suggestion was expressly denied by AP.  A further fact for the jury to consider was that there was no suggestion ABF had engaged in sexual activity with SK.
90. [90]
    Notwithstanding those factors, a consideration of the evidence as a whole, amply supports a conclusion that it was open to a jury to be satisfied that AP was reliable and credible in respect of the evidence she gave as to the sexual conduct engaged in by ABF, whilst in the shower with MDK and AP.
91. [91]
    Further, it was open to the jury to be satisfied on the balance of probabilities that ABF did not have a belief, on reasonable grounds, that AP was over 16 years of age.  In coming to that conclusion, the jury was entitled to have regard to both the evidence of SS as to AP’s physical appearance at the relevant time and RC’s evidence as to the conversation with the female, as to their ages, including the female’s response to that conversation.  Nothing in the evidence suggested that the jury had to reject either SS or RC’s evidence, as identified at [76] above, as unreliable or lacking credibility.
92. [92]
    ABF submits that RC never identified her as the female.  However, RC identified MDK and it was open, on consideration of the evidence as a whole, for the jury to be satisfied that ABF was the female in that conversation.
93. [93]
    Once those conclusions are reached, it was open, on a consideration of the evidence as a whole, to conclude that ABF was guilty of each of the offences, beyond reasonable doubt.  The verdicts of guilty were not unreasonable.

MDK’s sentence appeal

94. [94]
    MDK submits an effective head sentence of two years imprisonment to be served cumulatively on his existing sentence of imprisonment, was manifestly excessive when regard is had to principles of totality.
95. [95]
    The existing sentence was imposed on 18 April 2019, after MDK was found guilty by a jury of 26 sexual offences against three separate female complainants for offending between September 2008 and October 2013.  Six of those offences were committed against MDK’s older biological daughter, when she was aged between 3 and 7 years of age.  Eleven of the offences related to another biological daughter, who was the younger sister of the first complainant.  Those offences included an offence of maintaining an unlawful sexual relationship with that child for a period of two years, when that child was aged between 3 and 5 years.  The other offences included multiple offences of rape.  The remaining nine offences were committed in respect of the daughter of ABF.  Those offences included an offence of maintaining an unlawful sexual relationship with that child for a period of a little over two years, when she was aged between 3 and 5.  The remaining offences against the third complainant also included offences of rape.
96. [96]
    In respect of those offences, MDK was sentenced to an effective head sentence of 16 years and 8 months imprisonment.  A serious violent offence declaration was also made.  His parole eligibility date was fixed at 17 July 2032.
97. [97]
    In sentencing MDK for the present offending, the sentencing judge observed that MDK’s offending concerned two vulnerable young girls, who were exploited to meet MDK’s sexual perversions, with the offences being committed at about the same time as the even more serious offences against his own biological children and the child of ABF.  The sentencing judge observed that offending against ABF’s child was particularly serious, including rape and sodomy.  Each of the offences involved gross violations of the innocence and vulnerability of three young children.
98. [98]
    The sentencing judge also recorded that MDK, who was now 32 years of age, was aged 22 when he committed the offences for which he was to be sentenced on this occasion.  The sentencing judge observed that if he was only dealing with those offences, an appropriate sentence would be about 4 years imprisonment, but taking into account the very long sentence MDK was presently serving, imposed instead an effective sentence of 2 years imprisonment to be served cumulatively.
99. [99]
    If regard is had to the principle of totality, it cannot be said that an effective head sentence of 18 years and 8 months imprisonment for sexual offending over a period of five years, against five separate female complainants, two of whom were MDK’s biological children and one of whom was the child of his partner, was crushing or plainly unjust.  That was particularly telling when that sexual offending involved maintaining a sexual relationship with two of those complainants over an extended period, with multiple occasions of oral, vaginal and anal penetration.
100. [100]
     In support of this ground, MDK also submits that he ought not be convicted or punished for count 12 (sodomy) in light of the repeal of s 208 of the Criminal Code (Qld) on 23 September 2016.^[30]  Such a submission is without merit.^[31]
101. [101]
     To only have imposed a cumulative sentence of 2 years imprisonment, for MDK’s offending, fell well within a sound exercise of the sentencing discretion.
102. [102]
     The sentence imposed was not manifestly excessive.

Orders

103. [103]
     In CA No 268 of 2021, I would order that:

1. The appeal against conviction be dismissed.

104. [104]
     In CA No 289 of 2021, I would order that:

1. The appeal against conviction be dismissed.

2. Leave to appeal against sentence be refused.

105. [105]
     BRADLEY J:  Having assessed the record of the evidence, I agree with the conclusions of Boddice JA with respect to each of the grounds of appeal raised by the appellants as to their respective convictions.  I also concur with his Honour’s conclusion with respect to MDK’s application for leave to appeal.
106. [106]
     I agree with the orders proposed by Boddice JA to dispose of the appeals and the application before the Court.