R v BED[2023] QCA 196

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  Between 9 and 11 June 2021, the appellant was tried by a jury in the District Court at Cairns on an indictment alleging two counts of indecent treatment of a female child under 16 contrary to s 210(1)(a) of the Criminal Code (Qld).  The first count alleged the aggravating circumstances that the child was under 12 (provided for in s 210(3) of the Criminal Code) and under care (provided for in s 210(4) of the Criminal Code).  The second count alleged only the latter aggravating circumstance.
2. [2]
   The complainant on each count was ABW, a female Torres Strait Islander child born on 9 February 2007.  At the time of the alleged offending, ABW was attending boarding school at a hostel in the Torres Strait Islands.  The offending was alleged to have occurred at the hostel where the appellant was employed as a residential youth worker.
3. [3]
   The following table identifies the offending alleged on the indictment, as particularised by the Crown.

4. [4]
   The jury acquitted the appellant of count 1 (and also of the two alternatives to count 1, based on not being persuaded of either circumstance of aggravation) but convicted him of count 2.
5. [5]
   He was sentenced to 4 months imprisonment, to be suspended after serving 14 days, for an operational period of 12 months.
6. [6]
   The appellant appeals his conviction on the following grounds:

   1. Ground 1 – that the jury’s verdict was unreasonable on the basis that it was internally inconsistent with the acquittal on the first count; and
   2. Ground 2 – that it was wrongly suggested to the jury that the onus of proof was on the defendant to demonstrate motive in respect of a false complaint, by the prosecutor addressing the jury in terms similar to “why would she [the complainant] make it up.”
7. [7]
   For reasons which follow, the appeal should be dismissed.

The evidence at trial

8. [8]
   Pursuant to s 21AK of the Evidence Act 1977 (Qld), ABW’s evidence was given by playing to the jury her pre-recorded testimony.  ABW attested to the truth of the matters of which she had informed the police in her interview with them on 13 May 2019.  The recording of her interview was played to the jury and tendered pursuant to s 93A of the Evidence Act.  Preliminary complaint evidence was also elicited in various forms from six witnesses.  The appellant neither called nor gave evidence.
9. [9]
   ABW’s first language was Kriol.  Other witnesses were also Torres Strait Islanders.  The trial judge directed the jury both during the opening and in his summing up to pay careful attention to cross-cultural considerations when assessing credibility of witnesses from cultures other than their own.  In his summing up he put it this way:

“… while assessing credibility is relatively straightforward, where witnesses and the finders of facts share a common cultural background, it becomes more difficult when they do not. In many cultures, direct eye contact might be rude or challenging and that is true, often, for Aboriginal and Torres Strait Islander people, and children in many cultures might avoid contact with a questioner as displaying respect for the authority figure. That may, to an Anglo-Australian, seem evasive. Similarly, in some cultures it is considered impolite to flatly disagree with a questioner and a witness may be reluctant to completely disagree with a proposition and may try to find compromise in order to find common ground with a questioner. So bear in mind those factors.”

10. [10]
    I mention that direction not because there is any criticism of it, but because this Court too must have regard to such considerations when it assesses the evidence given at trial, of course bearing in mind the fact that the jury has had the benefit of having seen and heard the witnesses.

The evidence of ABW

11. [11]
    In her recorded s 93A evidence, ABW told the interviewing police officer, Sgt Wilson, that when she first went to the school the appellant “touched my soosoo”.  (It was common ground that this was a reference to her breast.)
12. [12]
    She said that this was her first year at the school.  She said that she did not know when she first arrived at the school; that it was not at the start of the school year, but that she arrived on a Wednesday, and the first time the appellant touched her was on the next day, Thursday, which was her “duty day”, when she was required to set up tables.  She said that the appellant would touch her like that “every Sunday night, Sunday night, or when I get extra [duty] day too.”
13. [13]
    She was asked further detail about the first occurrence of the touching.  She was standing in the kitchen.  She had come to “take the butter for the sandwich”, when he also came into the kitchen and shut the back door.  She tried to go, but he stopped her by putting a hand on the wall.  He was standing on the doorway.  Then “he touched my soosoo”, indicating her left breast.  The touch lasted a couple of seconds.  She pushed his hand down.  She went to her sister TRM’s room.  Her sister had seen her “freaking out” and asked her what was going on.  ABW said, “Well I only told her that [INDISTINCT] touched me um, soosoo.  Then she told my eldest sister [TLA].  And [TLA] told aunty Madge.”
14. [14]
    In her pre-recorded trial evidence, ABW identified photographs of the places to which she had referred in her s 93A statement.  By reference to the photographs, she distinguished between the kitchen and a room she called the food room, and which abutted the kitchen.  She again said that the first time the appellant touched her was inside the kitchen.  She said that she was in the kitchen after she went back to take the butter, and the appellant followed her.  He closed the back door.  She was standing up in front of the fridge, looking towards the shelves.  He was “standing up sideways” and facing towards the shelves.  She later described him as standing “next to her”, slightly to her side but slightly to the back.  He made a small turn towards her, then he touched her on the soosoo.  He put his hand over her shoulder onto her breast.
15. [15]
    As mentioned, ABW had made plain at the outset of her police interview that the appellant had touched her soosoo more than once.  When asked to identify the second time that it happened, ABW answered that “he keeps on doing that, touch my soosoo”.  When asked “Was there any times where it was different?”, she replied, “No, it was always in the kitchen”.  She was pressed as to when the second time happened.  Initially she said that it happened on a Friday, but then said she forgot.  Later she said the second time happened on the Monday after the first time.
16. [16]
    She was asked, “And can you remember where in the kitchen it happened? Last time it happened in the doorway. Did this happen differently?”. She replied, “[a]lways in the doorway”.  She said that the appellant sent her back to the kitchen to take the butter back, followed her back and “touched her soosoo.”  There was this passage in the interview:

“SGT WILSON: … And what, what hand did he use on the occasion? Can't remember?

[ABW]: Mm.

SGT WILSON: Yep. Was it any different to the first time?

[ABW]: Mm

SGT WILSON: No? Okay. And so he used an open hand or a closed hand?

[ABW]: No, open.

SGT WILSON: Open hand, okay. And so when he, when he grabbed your soosoo, did he wrap his hands around?

[ABW]: No.

SGT WILSON: No? Just--

[ABW]: [INDISTINCT].

SGT WILSON: Yeah. Okay. Alright. And so how many things, how many times do you think this has happened with [the appellant]?

[ABW]: Mm. Um.

SGT WILSON: So you’ve told me about two occasions. One on the, one you think on the Friday, when you first arrived at the college. And then on the Monday, you think maybe the next week that it happened. So apart from those two occasions, how many other times do you think it’s happened?

[ABW]: [INDISTINCT].

SGT WILSON: You dunno?

[ABW]: Mm.

SGT WILSON: Only a couple of other times? Or lots of other times?

[ABW]: Mm, lots of other times.

SGT WILSON: Lots of other times. Okay. Would you say more than once a week or less than once a week or?

[ABW]: More than once a week.”

17. [17]
    In her pre-recorded evidence, ABW said that on the second time the appellant touched her on the soosoo, she was in the food room.  She later said that she was “in the kitchen” but could not remember sufficiently to describe where she was in the kitchen.  She said she was looking towards the food room, and he was standing in front of her, facing her.  He was standing up with the black fridge depicted on one of the photographs.  He was looking towards the door at the back.
18. [18]
    In cross-examination, defence counsel Ms Logan asked ABW whether she remembered a time when she tried to walk into the kitchen without shoes, and the appellant reached out to stop her and stumbled, and she walked into his forearm, which just touched her chest or soosoo area.  ABW said she did not remember such a time.  It was further put to her that the only time he touched her was in the way described by the question.  She replied “No”.

The evidence of TBA

19. [19]
    TBA was also staying at the hostel.  She was in grade 8 at school.  She described ABW as her “small sister”.  Her section 93A interview with Sgt Wilson was quite confusing.  She initially said that ABW had not spoken to her about anything that had happened at the hostel, but had spoken to someone else.  However, Sgt Wilson continued to ask her about the “conversation”, apparently having understood something which TBA had said as conveying that she had had a conversation with ABW, perhaps in the presence of another person.  The recording then included the following passage:

“SGT WILSON: Okay, Alright. Yep, and so, can you remember what was said exactly?

[TBA]: Them tell, tell me um, the [appellant], him he [INDISTINCT], come and touch my, mm.

SGT WILSON: Yep.

[TBA]: Mm

SGT WILSON: What words did she use for that? Which, what words did she use for across her chest there?

[TBA]: Soosoo.

SGT WILSON: Soosoo, okay. And when did she um, when did she say it happened?

[TBA]: I dunno. Them just come tell me then.

SGT WILSON: Mm

[TBA]: Take off again.”

20. [20]
    In her pre-recorded evidence, by video link and through an interpreter, she gave the following evidence in answer to mainly leading questions by the prosecutor:

“MS FRIEDEWALD: Now, you told [Sgt Wilson] that your sister, [ABW], told you that [the appellant] had touched her soo soo.

…

MS FRIEDEWALD: Thank you. And when [ABW] told you that [the appellant] had touched her soo soo, what words did she use?

INTERPRETER: She – she said to me, “[The appellant] touched my soo soo, my breast”.

MS FRIEDEWALD: Thank you. When [ABW] told you this, [TBA], did she use her hands to show what he had done?

WITNESS: Yeah.

INTERPRETER: She sort of made that hand sign where – so touching her breast.”

The evidence of TRM

21. [21]
    TRM was 13 and was in grade 9 at the hostel.  TRM’s interview with Sgt Wilson on 28 May 2019 was tendered pursuant to s 93A of the Evidence Act.  She said that she was related to ABW, describing her as “my daughter” and “she calls me aunty”.  She said that the complainant “tells me a lot but I forget”.
22. [22]
    TRM said she had a conversation with ABW “last term”:

“… she came up to me and she said um, sissy um, um, the house parent, like [INDISTINCT] touched me.  Like … In privacy part”.

23. [23]
    TRM described some conversation about reporting it to a house parent, “aunty Madge”.
24. [24]
    She was later asked whether she could remember the very first time that ABW told her something about that and said that she could not.  The best she could say was that it happened earlier “last term”.
25. [25]
    When asked if she could remember the words that ABW used, she said:

“[INDISTINCT] talk Kriol for me … [INDISTINCT] said um, [INDISTINCT] said um, ah, [the appellant] almost, [the appellant] almost touched my soosoo like when we were playing.  And go, let’s go play and then off they were, like, [INDISTINCT] touch my soosoo.  [INDISTINCT].  Then I will say, ah, go speak [INDISTINCT].  So we will tell the same thing for aunty Madge.

26. [26]
    In her pre-recorded evidence, TRM told the prosecutor that everything she told the police officer was the truth, but was not otherwise asked what ABW had told her.  She was cross-examined only about some physical aspects of the hostel.

The evidence of TLA

27. [27]
    TLA gave evidence at the trial on 10 June 2021, at which time she was 18.  She described ABW as her sister.  She shared a room with ABW at the hostel in 2019.  The prosecutor asked her if she could “remember [ABW] telling you something about [the appellant]”, to which she replied:

“Yes. She said when she was in the dining room, [the appellant] touched her private part … of her body … She said he touched her boob.”

28. [28]
    The conversation happened when they were about to go to bed.  She did not remember when in the school term it was, although in cross examination she agreed that ABW first told her it was a “few weeks after school started”.  She said that she told ABW she should tell a house parent, Aunty Madge, “but she didn’t want to”.

The evidence of MWW

29. [29]
    MWW also went to school and stayed at the hostel in the room next to ABW.  She was 14 at the time of the trial.  She described the complainant as “my cousin sister”.  Her section 93A interview with Sgt Wilson included the following:

“SGT WILSON: … So um, there has, there’s been some discussions that um, [ABW’s] had um, with other people at the college um, about um, a house parent. So, can you tell me what, what you know about that?

[MWW]: Um, she told me that the house parent, I dunno, something like the house parent keep touching her breast.

SGT WILSON: Mmhm.

[MWW]: Yeah.

SGT WILSON: Okay. Um, and who did you say had done that?

[MWW]: Ah, [the appellant].

SGT WILSON: [The appellant]? Okay. Alright. So, can you go back to when you first had that discussion with [ABW]? So, can you tell me where you were?

[MWW]: I was doing my duties in the dining room.

SGT WILSON: Yep.

[MWW]: And [ABW] was in the kitchen, helping her big sister and [the appellant], dishing out the food. Yeah. She said after when we, we were finished, they went, we went out and [the appellant] hugged her and touched her breast.

SGT WILSON: Mmhmm. Okay. Alright.

[MWW]: And she told me after.

SGT WILSON: Mmhmm, later that night?

[MWW]: Yeah.”

30. [30]
    Sgt Wilson asked her how long ago the incident was, and MWW responded that it was somewhere in the middle of “last term”.  She said that when ABW told her she told her to report it to “aunty Madge”, but ABW said that she was afraid to talk to “aunty Madge”.  She said that ABW told her that it happened on “other times” too, “that [the appellant] like kept like touching her and like that she doesn’t, doesn’t like it”.
31. [31]
    In her pre-recorded evidence, MWW said that everything she told Sgt Wilson was the truth, but otherwise did not give evidence of what the complainant had told her.

The evidence of Ms Anabtawi

32. [32]
    Ms Madgeda Anabtawi was the head of boarding at the hostel.  It is apparent that she was the “Aunty Madge” referred to in the students’ evidence.  She gave evidence that ABW had a conversation with her in her office and ABW told her that she had been touched on the top of the chest by the appellant.  ABW told her she was in the dining room when he touched her.  Ms Anabtawi said that ABW told her it was the first Sunday she was there – when she arrived.  She said it happened on several occasions but was not specific about the rest and did not say where they had occurred.  Nor did Ms Anabtawi identify what date either the conversation with ABW occurred or when the “first Sunday” must have been.  Ms Anabtawi then arranged for the complainant to speak to Graham Henderson on the phone; she was present and was the interpreter, because English was not ABW’s first language.  Ms Anabtawi was unable to remember what date that occurred.

The evidence of Mr Henderson

33. [33]
    Mr Henderson was the Assistant Director of Human Resources with Aboriginal Hostels Limited.  On a telephone call to the hostel on 2 April 2019, he spoke to Ms Anabtawi and ABW.  His evidence included:

“Did Madgeda interpret what [ABW] told you? --- Yes.

Through the interpreter, what did [ABW] say to you? --- [ABW] advised that she had been touched on the breast by [the appellant].  I asked her a number of questions in relation to - - -

All right.  Okay.  Well, what did you say – what did you ask her?--- I asked her where it had occurred.  She advised me it had occurred in the – the kitchen, whilst they were making sandwiches.  I asked her had this occurred on other occasions.  She said it had.  It had first occurred some three days after she had commenced her term of boarding at [the hostel].  She advised me that she had told her sisters and that’s about it.”

34. [34]
    Mr Henderson’s evidence did not shed any light on what date it must have been that ABW commenced her term of boarding at the hostel.

Summing up

35. [35]
    In the context of the grounds of appeal in the present case, it is necessary only to identify the following parts of the summing up.
36. [36]
    The trial judge gave the direction that:

“… the burden of proof in this case rests on the Prosecution to prove the guilt of the defendant. There is no burden on a defendant to establish any fact, let alone his innocence. The defendant is presumed to be innocent and he can only be convicted if the Prosecution establishes he is guilty of the offence charged. For the Prosecution to discharge its burden of proving the guilt of the defendant, it is required to prove beyond reasonable doubt that he is guilty. This means, in order to convict him, you would need to be satisfied beyond reasonable doubt of every element which goes to make up the offence charged.

… It is for you to decide whether you are satisfied beyond reasonable doubt that the Prosecution has proved the elements of the offence. If you are left with a reasonable doubt about guilt, your duty is to acquit the defendant – that is to find him not guilty. If you are not left with any such doubt, your duty is to convict him – that is to find him guilty.”

37. [37]
    So far as the elements of the offences charged were concerned, the trial judge gave to the jury a document which identified what the prosecution had to prove beyond reasonable doubt for each count and then went through that document orally.
38. [38]
    So far as count 1 was concerned, that document provided:

“Count 1 - That on a date unknown between the twenty-eighth day of January. 2019. and the eighth day of February 2019: Indecent treatment of a child under sixteen, under 12 and under care.

Particulars: The defendant deliberately touched the complainant's breast with his hand as he stood next to her. This occurred in the kitchen at [the] Hostel.

Elements:

The prosecution must prove each element beyond reasonable doubt:-

1. The defendant deliberately dealt with the complainant. Dealing includes touching.

2. The dealing was indecent. The word "indecent" bears its ordinary everyday meaning, that is what the community regards as indecent. It is what offends against currently accepted standards of decency. Indecency must always be judged in the light of time, place and circumstances.

3. The dealing was unlawful. Unlawful means not justified authorised or excused by law.

4. The complainant was under 16 years.

Circumstance of aggravation

5. The complainant was under 12.

6. The complainant was under the care of the defendant. "Under his or her care" is an ordinary English expression. It means at the time alleged the defendant was responsible for the control and supervision of the child. It does not require any formal legal process to have occurred such as an order for custody. In determining this element the jury should take into account such things as the age of the child, how the child came to be with the defendant and why the child was with the defendant.”

39. [39]
    The first alternative to count 1 was left to the jury by omitting the sixth element and the second alternative was left to the jury by omitting both the fifth and sixth elements.  The identification of what the prosecution needed to prove beyond reasonable doubt for count 2 followed a similar pattern.
40. [40]
    The trial judge also directed the jury on the need to consider the charges separately, in these terms:

“Now, as I said at the start of the trial, separate charges have been preferred. You will need to consider each charge separately, evaluating the evidence relating to that particular charge to decide whether you are satisfied the prosecution has proved the essential elements. You will be asked to return separate verdicts for each charge. The evidence in respect of each offence is different. So your verdicts need not be the same. They can be, but they need not be. If you found guilt on one charge, you couldn’t simply reason that he’s guilty of that, therefore he’s guilty of the other. You need to look at the evidence relating to the particular count to see if the Crown has proved its case.

If you have a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence on one count, whether that be by a reference to her demeanour or [for] any other reason, you must take that into account in assessing her truthfulness or reliability generally. Your general assessment of the complainant as a witness will be relevant to both counts, but you will have to consider evidence in respect of each count when considering that count. Now, it may occur in respect of one of the counts that for some reason you’re not sufficiently confident of her evidence to convict in respect of that count.

A situation may arise where, in respect of a particular count, you get to the point where although you’re inclined to believe she’s probably right, you have some reasonable doubt about an element or elements of that particular offence. Now, if that occurs, of course, you would find the defendant not guilty in respect of that count. That doesn’t mean you cannot convict of the other count. You’ll need to consider why you have the reasonable doubt about that part of her evidence and consider whether it affects the way you assess the rest of her evidence, that is whether your doubt about that aspect of her evidence causes you to have a reasonable doubt about the evidence on the other count.”

41. [41]
    The trial judge gave an unremarkable direction concerning the evidence of the preliminary complaint witnesses and the limitations on the use of that evidence.  He also gave an unremarkable direction as to the prosecution’s reliance on the evidence of the uncharged acts of all the other touching which was said to have occurred.
42. [42]
    The trial judge directed the jury to scrutinize the evidence of ABW with care, and in doing so gave the directions which must be considered in relation to appeal ground 2.  His Honour said:

“Now, members of the jury, in this case I warn you to scrutinize the evidence of the complainant with care before you may act on it. You must consider the circumstances relevant to its evaluation and pay heed to this warning before you may be satisfied beyond reasonable doubt of its truth and accuracy. A number of circumstances [are] to be considered in this case. Firstly, there was no corroborating evidence for her account. On her account it occurred in a reasonably busy area. Secondly, you might recall that those police interviews were very hard to hear. It was very hard to pick up some of the things she was saying, that’s something you will need to pay specific regard to when assessing her evidence with care.

You should only act on her evidence if after considering it with that warning in mind and all of the other evidence you are convinced of its truth and accuracy. During the address the prosecutor said there was no reason for her to lie about this, and [defence counsel] by way of response said, “Well, children sometimes do tell false stories.” All right. Bear in mind this, any failure or inability on the part of the defendant to prove a motive to lie does not establish that such a motive does not exist. If such a motive existed, a defendant may not know of it. Sometimes a wrong account is given for many reasons we can never discover, and there may be reasons why a person might make a false complaint. If you are not persuaded that any motive to lie on the part of the complainant has been established, it does not necessarily mean she is truthful. It remains necessary for you to satisfy yourselves that she is truthful.

Now, [the appellant], did not give or call evidence, that is his right. He is not bound to give or call evidence. He’s entitled to insist that the prosecution proves the case against him, if it can. The prosecution bears the burden of proving the guilt of the defendant beyond a reasonable doubt. And the fact he did not give evidence is not evidence against him. It does not constitute any admission of guilt by conduct, and it may not be used to fill in any gaps in the evidence led by the prosecution. It proves nothing at all and you must not assume that because he did not give evidence that adds, in some way, to the case against him. It cannot be considered at all when deciding whether the prosecution has proved its case beyond a reasonable doubt. And most certainly does not make the task confronting the prosecution any easier. It cannot change the fact that the prosecution retains the responsibility to prove the guilt of the defendant beyond a reasonable doubt.”

Consideration of appeal ground 1

43. [43]
    In R v Silcock this Court summarised the law concerning inconsistent verdicts, in these terms:^[1]

“In R v GAW [2015] QCA 166 Philippides JA (with whom Margaret McMurdo P and Holmes JA agreed) by reference to M v The Queen (1994) 181 CLR 487, Jones v The Queen (1997) 191 CLR 439 and MacKenzie v The Queen (1996) 190 CLR 348 summarised the principles concerning inconsistent verdicts as follows:

“The principles concerning inconsistent verdicts are well-established. Where alleged inconsistency arises in the jury verdicts upon different counts affecting an accused, the test is one of “logic and reasonableness”; that is, whether the party alleging inconsistency has satisfied the court that the verdicts cannot stand together because “no reasonable jury, who had applied their mind properly to the facts in the case could have arrived” at them.

However, respect for the jury’s function results in a reluctance in appellate courts accepting a submission that verdicts are inconsistent in the relevant sense, so that:

‘... 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 that regard, ‘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’. Alternatively, the appellate court may conclude that the jury took a merciful view of the facts on one count; a function which has always been open to a jury.

It is only where the inconsistency rises to the point that the appellate court considers intervention is necessary to prevent possible injustice that the relevant conviction will be set aside. While it is impossible to state hard and fast rules, the following provide examples of relevant inconsistency; where the different verdicts returned by the jury are an affront to logic and common sense which is unacceptable, and strongly suggests a compromise in the performance of the jury’s duty, or which suggests confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction on the applicable law.””

44. [44]
    In the present case the differences between the verdicts can be reconciled by having regard to one or more of the following considerations.
45. [45]
    First, one material distinction between the two counts was the differing date ranges which they covered.  The date range covered by the first count was 28 January 2019 to 8 February 2019.  The date range covered by the second count was 28 January 2019 to 28 March 2019.  The first count alleged as an aggravating circumstance that at the time of the count 1 offending ABW was under 12.  The evidence was that ABW was born on 9 February 2007.  That meant she turned 12 on 9 February 2019.  If the aggravating circumstance was to be proved, it followed that it was essential that the Crown proved the count 1 offending occurred on or before 8 February 2019.  If that was not proved, it would be fatal to a conclusion that the aggravating circumstance had been established.  However, logically, it would also be fatal to a conclusion that the offending occurred within the range alleged in respect of count 1.
46. [46]
    The quality of the evidence touching upon the dates on which the offending conduct occurred was poor.  The evidence supported a finding that the touching occurred in the first term of the school year and that it must have preceded the telephone conversation with Mr Henderson, which occurred on 2 April 2019.  But the evidence did not identify when ABW arrived at the school in the first term, except that ABW said she did not arrive at the beginning of the school year.  The evidence that the offending commenced shortly after her arrival did not help in identifying when the offending first occurred.
47. [47]
    The jury’s guilty verdict on count 2 meant that they were persuaded beyond reasonable doubt of the reliability and credibility of ABW’s evidence as to that count and that ABW was under the appellant’s care.  But their verdict on count 1 is explicable on the basis that they may well have been persuaded of the credibility and reliability of ABW’s evidence as to count 1, but not been persuaded beyond reasonable doubt that the offending in count 1 occurred on or before 8 February 2019.  If they were not so persuaded then for reasons already expressed, they could neither have been persuaded that it occurred when she was under 12, nor that it occurred within the date range alleged in respect of count 1, thereby explaining the verdict on that count.
48. [48]
    Second, the preliminary complaint evidence given by TRM specifically related to count 1.  TRM’s evidence was that ABW had disclosed that the appellant had “almost” touched her breast.  That differed from ABW’s own evidence which was that the appellant had actually touched her breast.  The jury may have found that inconsistency affected ABW’s reliability on that particular instance of touching.
49. [49]
    Third, and of similar effect to the second point, there was an inconsistency in ABW’s description of the physical mechanism by which the count 1 touching occurred.  In her s 93A statement to police she had described the appellant putting his hand on her left breast area and then she moved it.  In her pre-recorded evidence she described how he was standing next to her before he made a small turn towards her to touch her breast, and he did so placing his hand over her shoulder and onto her breast.  The appellant’s counsel sought to describe the addition of the new information as “a red flag” which would cause the jury to have a doubt as to her evidence.  This passage related only to count 1 and the jury may have found that inconsistency affected ABW’s reliability on that particular instance of touching.
50. [50]
    The appellant has not satisfied me that the two verdicts cannot stand together.  Appeal ground 1 must be rejected.

Consideration of appeal ground 2

51. [51]
    The aspect of the prosecutor’s closing address to which the primary judge referred in the passage from his summing up (quoted at [42] above) occurred when she was addressing the question of ABW’s credibility.  After addressing cultural issues already mentioned and the question of inconsistencies between what ABW said she told the preliminary complaint witnesses and what they recalled about what she had told them, the prosecutor observed:

“When looking at [ABW’s] credibility, I ask you to think about the fact that she doesn’t appear to have any reason to make this up. There’s no evidence before you or no suggestion that she’s got a reason to lie about these allegations. You might think about her truthfulness, and recall what she said to the police officer, Wilson, when she was being asked about what hand [the appellant] used to touch her. [ABW] quite honestly said she didn’t know, and you might think a child making up these allegations would more readily have picked a left or right hand, because it’s a relatively simple answer to get. But instead, [ABW] honestly said she didn’t know.

Similarly, [ABW] didn’t embellish the number of times, you might think, that this happened to her. And you might remember, when Officer Wilson said, “How many were there?” and then she repeated, “Were there more than 10?” [ABW] simply said, “I don’t know.” She didn’t pick a number out of the air, which you might think a child who’s making up these allegations might do, because that opportunity was ripe to be taken. And, in fact, when she was at court, being asked questions about it, later on, she said she thinks two or three, so again, she’s not embellishing the number of times these things happened to her, and you might think that’s consistent with a child who’s telling the truth about what had been done to her.”

52. [52]
    It was common ground that the prosecutor’s mention of motive was inappropriate.  The vice in such remarks by the prosecution lies in its capacity for a jury to be led into an inappropriate course of reasoning.  In R v DBV,^[2]McMurdo JA summarised remarks made by Sofronoff P in R v Bevinetto^[3] in the following way (footnotes omitted):

“… The President there described three ways in which a jury might be misled into engaging in illogical reasoning where there is an issue whether a complainant, or another witness, has a motive to make and maintain a false allegation.  The first, he said, was that “a jury’s rejection of the suggested motive may leave it to conclude, from that rejection alone, that there can be no motive to lie and that the complainant’s credibility is thereby enhanced.”  The second was that a jury might wrongly think that an accused should be well placed to identify the complainant’s motive to fabricate the allegation if that motive exists, and that “the accused’s failure to identify or prove such a motive tends, by itself, to prove that there is no motive.”  The third was that “the process of reasoning [c]ould involve the jury in unwittingly placing the burden of proving the absence of motive upon the accused”.  The President did not formulate a draft direction to meet these risks.  The guidance which was given by his judgment is that a trial judge must decide whether to give a direction having regard to “the real issues in the case” and to “how the parties have conducted their respective cases”.”

53. [53]
    In the present case the direction given by the trial judge addressed all these risks.  That much was acknowledged by the appellant.  The appellant suggested, however, that the direction was insufficient because it did not alert the jury to the possibility that ABW might have been mistaken rather than dishonest.  The respondent submitted, and I agree, that given that the direction immediately followed a warning consistent with Robinson v The Queen^[4] which required the jury to scrutinize ABW’s evidence closely and only act on it if convinced beyond reasonable doubt both of its truth and accuracy, there was no risk that the jury might have not considered the possibility that ABW’s evidence might have been mistaken rather than dishonest.  Appeal ground 2 must be rejected.

Conclusion

54. [54]
    The appeal should be dismissed.
55. [55]
    GOTTERSON AJA:  I agree with the conclusion of Bond JA that this appeal should be dismissed and with his Honour’s reasons for it.
56. [56]
    BODDICE AJA:  I agree with Bond JA.