R v FBD[2023] QCA 236

SUPREME COURT OF QUEENSLAND

1. [1]
   BOWSKILL CJ:  I agree, for the reasons given by Morrison JA, that the appeal should be dismissed.
2. [2]
   MORRISON JA:  After a three-day trial the appellant was convicted of two counts of unlawfully and indecently dealing with a child under the age of 16 years.  The offences took place between 4 April 1986 and 1 May 1986, on a rural property.  At the time the complainant was about 13-14 years old.
3. [3]
   The complainant’s mother (MUM) married the appellant’s uncle (UNK).  There were two properties, X and Y.  The complainant lived at X with MUM and UNK.  The appellant lived at his property, Y.
4. [4]
   The appellant was charged on the indictment with three counts of indecent treatment of a child under 16, and one count of attempted rape, the offences being particularised as follows:

   1. count 1 (indecent treatment) – between 31 December 1984 and 4 April 1986, the appellant touched the complainant’s vagina at X (the property where the complainant lived);
   2. count 2 (indecent treatment) - between 31 December 1984 and 4 April 1986, the appellant touched the complainant’s vagina at Y (the appellant’s property);
   3. count 3 (indecent treatment) – between 4 April 1986 and 1 May 1986, the appellant put the complainant’s hand on his penis at Y;
   4. count 4 (attempted rape) – between 4 April 1986 and 1 May 1986, following count 3, the appellant tried to penetrate the complainant’s vagina with his penis at Y; the appellant was not able to penetrate her vagina.
5. [5]
   There was an alternative count to the attempted rape count 4, namely indecent treatment.
6. [6]
   The offences occurred on three discrete occasions.  In that regard:

   1. count 1 was alleged to have occurred when the appellant was loading grain for transport from UNK’s property;
   2. count 2 was alleged to have occurred at Y when UNK and the complainant were shown a white, red and black race car in a shed; the race car was located behind a door that was depicted in photos tendered; and
   3. counts 3 and 4 were alleged to have occurred at the same time in the appellant’s house, when the appellant’s wife was absent.
7. [7]
   The end date of the offences was capable of being ascertained because they coincided with a time when MUM and UNK left on honeymoon after they married.
8. [8]
   The appellant was acquitted on counts 1 and 2 but convicted on count 3 and the alternative count 4, indecent treatment.
9. [9]
   The appellant challenges his convictions on the following grounds:

   1. the jury’s verdicts were unreasonable and cannot be supported having regard to the evidence;
   2. the verdicts on counts 3 and 4 are unreasonable because they are inconsistent with the verdicts of acquittal on counts 1 and 2; and
   3. the learned trial judge erred in failing to give a direction in accordance with Longman v The Queen.

Unreasonable verdicts

10. [10]
    The appellant’s first ground of appeal is that the verdicts on counts 3 and 4 were unreasonable and cannot be supported by the evidence.
11. [11]
    The legal principles applicable where the ground is that the verdict was unreasonable are well known.  They were recently restated in Dansie v The Queen.^[1]  Dansie reaffirmed the approach set out in M v The Queen:^[2]
12. [12]
    The Court reaffirmed the relevant task as being that laid down in M v The Queen:^[3]

“8 That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that “the question which the court must ask itself” when performing that function is “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”, that question being “one of fact which the court must decide by making its own independent assessment of the evidence”.

9 The joint judgment in M made clear that “in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses”. The joint judgment equally made clear how those considerations are to impact on the court’s independent assessment of the evidence. That was the point of the carefully crafted passage in which their Honours stated:

“It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred [on the unreasonable verdict ground]. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be 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 accused was guilty.”

13. [13]
    The High Court also said:^[4]

“12 The authoritative guidance to be gained from the joint judgment in M has not diminished with time. M was unanimously affirmed in MFA v The Queen and again in SKA v The Queen, where it was spelt out that the “test set down in M” required a court of criminal appeal to undertake an “independent assessment of the evidence, both as to its sufficiency and its quality” and that consideration of what might be labelled “jury” questions does not lie beyond the scope of that assessment. Coughlan v The Queen illustrates that an independent assessment of the evidence in a case in which the evidence at trial was substantially circumstantial requires the court of criminal appeal itself “to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard” and in so doing to form its own judgment as to whether “the prosecution has failed to exclude an inference consistent with innocence that was reasonably open””.

14. [14]
    In Pell v The Queen^[5] the Hight Court said:

“39 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.”

15. [15]
    In R v Miller^[6] this Court said:

“18 An appellant who contends that the verdict of the jury was unreasonable or that it was unsupported by the evidence must identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduced the probative value of the evidence in such a way that the appellate court ought to conclude that even making full allowance for the advantages enjoyed by the jury there is a significant possibility that an innocent person has been convicted. The mere identification of weaknesses in the prosecution case is not enough to sustain the ground. As Brennan J said in M v The Queen, and as criminal practitioners and trial judges know very well, it is a sad but salutary experience of counsel for the defence that the prosecution’s “weak point” is often brushed aside dismissively by a jury satisfied of the honesty of the prosecution witness.”

16. [16]
    At the centre of the appellant’s submissions on this ground was the proposition that upon the jury rejecting the testimony of the complainant in respect of counts 1 and 2 there was insufficient reliable evidence to justify the conviction of the appellant on counts 3 and 4.
17. [17]
    The appellant accepted that the mere fact of the rejection of a complainant’s evidence on one count will not necessitate a conclusion that a complainant’s evidence must be rejected in total.^[7]  Further, that is particularly so when there is some reason to distinguish those verdicts from the acquittals.^[8]  The test is one of logic and reasonableness.^[9]
18. [18]
    The appellant sought to draw support from the majority in Jones v The Queen:^[10]

“The jury’s finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the appellant’s acquittal on the second count was a rejection of the complainant’s account of events which were said to give rise to that count. …Whatever the explanation may be, however, the jury’s rejection of the complainant’s account on the second count diminished her overall credibility.

It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant’s evidence or the surrounding circumstances which give any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count.”

19. [19]
    Then, it was submitted that the statement in Jones v The Queen was cited with approval in R v D where the court observed:^[11]

“Having entertained (as they evidently did) a reasonable doubt about the evidence, standing alone, of the complainant in respect of each of the six primary counts 2 to 4 and 6 to 8, it is difficult to see what can have remained of her credibility when the jury came to assess the weight of her statements in relation to count 5. In this case, it is impossible to avoid the conclusion that in some, not necessarily definable, way the trial process here has miscarried.”

20. [20]
    Thus the appellant submitted that although it may be conceded that the credit of the complainant was to an extent bolstered by the pretext call and the preliminary complaint evidence, that additional evidence was not sufficient to overcome:

    1. the evidence of all the other witnesses who were present at the house, and was inconsistent with the appellant’s wife being away from the house at the time the offences were alleged to have occurred; and
    2. the rejection by the jury of the complainant’s unambiguous testimony in respect of counts 1 and 2.  In this context, the complainant testified that she was equally certain as to the occurrence of all the events the subject of the charges.

The evidence at trial

21. [21]
    The evidence at the trial came from various witnesses:

    1. the complainant;
    2. the complainant’s brother (BRO);
    3. the appellant’s wife (FIN);
    4. the complainant’s mother, MUM;
    5. her step-father, UNK;
    6. the appellant’s son (SON);
    7. the appellant’s daughter (DAU);
    8. two Police witnesses;^[12] and
    9. the appellant.
22. [22]
    In addition, there were a number of exhibits, including photographs of X, various trucks, sheds and a race car, and drawings of the layout of the loading area at X, and a diagram of Y.

The complainant’s evidence

23. [23]
    The complainant was 50 at the time of the trial.  She identified her family, including MUM and BRO, and that MUM married UNK.  At the start of 1985 she and her family lived in Brisbane but moved to UNK’s farm, X, at the end of 1985.  She was then at the end of Year 7 in school.  MUM married UNK in April 1986.^[13]
24. [24]
    She said the appellant’s farm, Y, was about a 10-15 minute drive from X.  The appellant was married to FIN, and they had two children, SON and DAU.^[14]
25. [25]
    The complainant said:

    1. she met the appellant soon after moving to X, and saw him regularly when he came to X to either cut grain or harvest grain, or talk to UNK;^[15]
    2. she thought that he repaired his race car in the shed at X at one time;^[16]
    3. she described her interaction with the appellant as “friendly”, and “then over time it just developed into a hug here and there and then it was, you know, a kiss”;^[17]
    4. she said that the appellant use to cart grain to Brisbane for UNK and sometimes she went with him in the truck;^[18]
    5. she said the hugs and kisses occurred not just at X, but at the appellant’s farm at Y, and in the truck;^[19]
    6. she said that the physical interaction went further than a hug and a kiss, describing an occasion when the appellant came to X to pick up grain; while he was filling up the truck he gave her a hug from behind and “slid his hands over my breasts and then down towards my vagina”; the hand moved “to the top of my vagina … just the top of the … pelvic bone”;^[20]
    7. she said that the appellant’s hand went between her thighs and in her shorts, but outside her underwear;^[21]
    8. she described the appellant’s hand as over her underwear and “cupping it”;  the whole of his hand was between her thighs but part of one finger was on the top part of her vagina;^[22]
    9. she said that the touching stopped when the appellant realised his truck needed to be moved;
    10. she put the date this occurred at “roughly around December” but before her mother married the UNK;^[23]
    11. she drew a diagram of the house and the shed, and where the truck was; that became exhibit 1; by reference to that she described where count 1 took place;^[24]
    12. turning to count 2, she said there was a second time when the appellant touched her “In the shed, over at his place”;^[25]
    13. she described that on an occasion when UNK and she went over to look at a race car and to talk to the appellant and his uncle; while the others were talking away from the shed, the appellant hugged her from behind, the same as the first time, with his hand on her breast and with his other hand he gave her a pat on her pelvic bone, over her clothing;^[26]
    14. she identified various positions on a diagram (exhibit 3) and by reference to photos of Y (exhibit 4);
    15. turning to count 3 and 4, she said that when her mother and UNK got married in April 1986, during the period of their honeymoon she stayed with the appellant and his wife, FIN, for approximately two weeks;^[27]
    16. during that time she said that she was in the appellant’s room, in his bed, and “we were just in bed talking”; she had pyjamas on but the appellant was naked; at the time the appellant’s daughter, DAU, was in the house but in her bed in a separate room; the appellant took the complainant’s hand and “slid it down his chest [and] over his penis”;  it was just “a graze over it”, and she took her hand back;^[28]
    17. after that she said the appellant “rolled me over onto my back and my pyjama pants were down and he put his penis on my vagina … [h]e tried to push it a  little to put it inside my vagina but it just didn’t happen … [j]ust pushed on my vagina.  It wouldn’t fit”;^[29]
    18. she described her reaction when that occurred as being “like a stiff dolly” and she was scared;^[30]
    19. by reference to a diagram of the house (exhibit 5) she identified various rooms and where that incident occurred; and
    20. after that occasion she said that nothing else happened except that they continued “kissing and cuddling”, but over time it became less and less.^[31]
26. [26]
    The complainant said she told her brother first, before she spoke to the police.  She did not tell him any details.  She told her mother the morning before she went to see the police, telling her the same thing.^[32]  She went to the police station on 28 May 2021, spoke to Police Officer Helsdon at the front counter, and was then interviewed by Police Officer Armstrong.^[33]  The recording of the conversation with Officer Helsdon then became exhibit 16.^[34]
27. [27]
    In exhibit 16 the complainant described the events of counts 3 and 4 in some detail.  In particular she referred to being in the bed, and the appellant’s attempt to put his penis in her vagina, being unsuccessful because she was too small.
28. [28]
    In cross-examination the following points emerged:

    1. the complainant could not remember the exact details of the race car, but described it as white, black and red; she was shown some photographs of a race car, but could not identify it as the one she referred to; she said she had only ever seen one race car and that it had been re-painted; it was coloured red, black and white;^[35]
    2. it was put to her that the last time she saw the appellant was in Dalby in 2018, at a service station where they conversed and then kissed; she said she could not recall that, or the conversation, or whether it was at a service station where his race car was on a trailer;^[36]
    3. she said that she did not recall it happening but “I’m not saying that it did or did not happen”;^[37]
    4. it was put to her that she and the appellant kissed for ten minutes by the race car at a Mobil service station; she reiterated that she could not remember an incident at a service station, but denied that there would have been kissing;^[38]
    5. it was put to her that the race car was never at UNK’s property, X, or Y;  the complainant said she believed she had seen it at X, and knew it was at Y;^[39]
    6. she was asked if her memory of the race car being at Y was a clear memory, and she said it was; she was then asked if that memory was “consistent with the other memories you have of [the appellant] abusing you in the period when [UNK and MUM] were on the honeymoon”; she answered, “Yes”; she was then asked whether she was “as certain about all of those memories as you are about the race car being at Y in the shed”, and she answered, “Yes”;^[40]
    7. she was shown photographs of the shed at Y and it was put to her that a particular barrier which she had said was not in place, had remained in place the entire time; she answered “that’s not what I recall”;^[41]
    8. various questions were put to her about the race car including its colouring, when it was purchased (1991) and when it was repainted; the propositions were disputed, with the complainant saying “That’s not what I remember”;^[42]
    9. it was put to her that at no stage from 1985 to 1986 did the appellant ever take grain from UNK’s property to the Brisbane Port; she disagreed;^[43]
    10. it was then put to her that the appellant “never took grain from [UNK’s] property at all in that period of time”, that “grain was never delivered to the Brisbane [P]ort”, and “you were never taken in that vehicle with him to Brisbane”; the complainant disagreed with all of those propositions;^[44]
    11. turning to when she said she was a passenger in the truck, the complainant described how she would hop out of her seatbelt, move herself over to where the appellant was, describing that as “I would shimmy over”, and then the appellant would lean over and kiss her;^[45]
    12. a number of propositions were put to her to the effect of the appellant delivering sunflower seeds to Carole Park because there was no grain facility for the unloading of grain trucks at the Port of Brisbane; the complainant said she could not comment upon that;^[46]
    13. because of that, it was put to her that it could not be the case that the appellant took grain from the property to Brisbane, with her in the truck; the complainant maintained that it did happen;^[47]
    14. turning to counts 3 and 4, the complainant was questioned as to what she had told her brother; she said she had not told him any of the details, and had no memory of telling him any details about the appellant getting into bed with her;^[48]
    15. it was put to her that nothing of a sexual nature happened during the period she was staying at the appellant’s house, a proposition which she denied saying she had a clear memory of it;^[49]
    16. it was then put to her that there was “never ever any touching in the way you’ve described in your evidence, [attempted] to put a penis inside you in the way you’ve described in your evidence, the groping of you in the way you’ve described in your evidence, between you and [the appellant] in 1985 to 1986 when you were a teenager”; the complainant said that the incidents had happened;^[50]
    17. it was then put to her that the process of loading grain onto a truck did not afford the opportunity for anyone who was loading the grain to commit the offences she had referred to; she denied that, saying there was plenty of opportunity;^[51]
    18. a series of questions were put to her to the effect that there was another person who was doing the hauling for UNK,^[52] that he had driven a different truck and trailer and that her memory of the events was wrong; the complainant said she could not comment on the other person, or the truck or trailer, but her memories were accurate;^[53] and
    19. it was then put to her that when she told the prosecution that she had been hoping the offending was a dream, that was because she went to a professional to find out whether it was real or not real, and the reason she went to see the professional was because she was uncertain as to whether the events had happened or not; the complainant admitted she had been to see a professional for assistance, but not because she doubted her own memory, but rather “I wanted it to be a dream … I would hope for it not to be real”; she maintained that her memory was real, and “It’s always been real”.^[54]

Evidence of the complainant’s brother

29. [29]
    The complainant’s brother said that in the time they lived at X the appellant was over regularly sharing farming equipment or helping out UNK.  He said he could recall the appellant having a truck and bringing it over to X.  He could recall going in the truck himself to Brisbane, and seeing the complainant in the truck.^[55] He could recall seeing the complainant leave the property in the truck with the appellant.^[56]  When his mother married UNK and went on their honeymoon, he stayed with the appellant’s parents (SHL and TOM).  The complainant went to stay with the appellant and FIN.
30. [30]
    In 2021 he could recall speaking to the complainant about the appellant.  He described it in this way:^[57]

“And, yeah, she was a bit upset and wanted, yeah, said she needed to get something off her chest.  And basically stated that her and [the appellant], they had an inappropriate relationship.  That rang alarm bells to me.  As soon as she said ‘inappropriate’, she said she was 13 at the time and, yeah, he touched her inappropriately and that’s when I said to her, you know, like, yeah, if this is the case, you need to report it, yeah.”

31. [31]
    Asked if he was told any more detail than that, he answered “Other than [the appellant] got into bed with her.  And that’s after that I just said … this needs to be reported”.^[58]
32. [32]
    In cross-examination the following points emerged:

    1. it was put to him that at no point did the appellant drive away with the complainant in the truck; the brother said he had a different memory of that occurring, “Absolutely, yes”;^[59]
    2. it was put to him that the appellant did not do any hauling work for UNK, that is taking grain away; the brother disagreed;^[60]
    3. the brother agreed that some of the hauling was done by RAY, but disagreed that it was not done by the appellant in the 1985/1986 period;^[61] and
    4. it was put to him that he was never in the truck with the appellant going to Brisbane; he answered, “You can suggest that, but I know where I went and, yeah, I was in that truck with [the appellant], going through the traffic in Brisbane”.^[62]

Evidence of FIN

33. [33]
    FIN gave evidence to the following affect:

    1. in 1985 and early 1986 the appellant did not often go over to X, but would sometimes go if UNK requested help;^[63]
    2. at that time the appellant owned a race car painted white with blue stripes and a blue number; it was never kept at Y because there was no power or any facilities there; and
    3. in April 1986, when  MUM and UNK went on a honeymoon, the complainant stayed at her house for two weeks; she slept in the bedroom with DAU, in which there was one double bed.
34. [34]
    In cross-examination the following points emerged:

    1. FIN identified, by photographs which became exhibit 8, the appellant’s truck in the period 1985 to 1986;^[64]
    2. during the time that the complainant stayed at her house for two weeks, she was at home for the entire period of time;^[65]
    3. during that time the appellant was working most days on the farm, starting early in the morning;^[66]
    4. there were occasions when she would leave the farm during that time, but she would take the children with her, including the complainant;^[67]
    5. having been asked to review work diaries for the period 1985 to 1986, she had not been able to find any record of the appellant hauling grain for UNK;^[68]
    6. the diary for 1986 was one kept by her mother-in-law (SHL); it became exhibit 9; having reviewed the 1986 diary “minimal loads^[69] of grain were transported by [the appellant] to Brisbane in that period of time”;^[70]
    7. from the diary there were records of the appellant harvesting sorghum and unloading into a silo, and transporting sunflowers, but no record of the appellant carting any grain;^[71]
    8. by reference to her diary for 1987, no loads were taken from UNK’s farm;^[72]
    9. grain was not unloaded at Carole Park, where other crops went, because it had to be sold to the Wheat Board and delivered to particular silos at Malu;^[73]
    10. she said that the appellant’s original race car was sold in 1987 as a shell, and the replacement race car was not purchased until 1991; it was red and black with a checkerboard pattern on the back of the vehicle;^[74]
    11. the race cars were never kept at Y because the shed was a bare dirt floor, no electricity and no tools.^[75]
35. [35]
    In questioning by the trial judge, FIN said that she could not recall the appellant ever carting grain from UNK’s place to the Port of Brisbane, and to the extent that the 1986 diary did not show such entries, it was consistent with her memory.^[76]
36. [36]
    FIN said she found the 1986 diary in 1992 after SHL died.  SHL never talked to her about what was in the diary and FIN never made entries in it.^[77]

Evidence by MUM

37. [37]
    The complainant’s mother gave evidence of the move to X and her marriage to UNK.  She could recall the appellant coming to X to talk to UNK, and at one stage he moved some grain, in the time period of 1985.^[78]  She could not remember the complainant going in the appellant’s truck, but trucks were going backwards and forwards all the time with the harvest, “so the kids would probably be in and out of trucks like yo-yos”.^[79]
38. [38]
    In May 2021 the complainant told her that the appellant “did interfere with her while we were on our honeymoon”.^[80]
39. [39]
    In cross-examination the following points emerged:

    1. her memory of who was hauling what and when was not strong; UNK’s son, RAY, lived on the property and was hauling various things to do with the farm; he stayed there for two or three years after MUM and FIN married;^[81] and
    2. she would not have granted permission to the complainant to go to Brisbane with the appellant in a truck.^[82]

Evidence by UNK

40. [40]
    UNK said that the appellant did not come to X very often, “Not unless he was carting grain for me”.^[83]  That would occur if UNK’s son (RAY) was tied up, as it was RAY who would usually cart the grain.^[84]
41. [41]
    In cross-examination the following points emerged:

    1. usually RAY did the grain hauling, and it was only in unusual circumstances that the appellant would do it;^[85]
    2. he was uncertain when the grain handling facility at the Port of Brisbane opened;
    3. he could not be sure but he thought he had probably seen the race car at Y;^[86]
    4. he had never witnessed interaction between the complainant and the appellant while the appellant was loading grain; during such loading UNK would be the supervisor;^[87] and
    5. there were Grain Board silos closer than Brisbane than to X; prior to the bulk grain handling facility being opened at the Port of Brisbane in 1991, it was not the case that no wheat was ever exported from Brisbane, as it would have been done without a bulk handling facility.^[88]

Evidence by SON

42. [42]
    The appellant’s son, SON, gave evidence of the overall family and meeting the complainant through association with the family.  When the complainant stayed with them during the honeymoon, she was sleeping in the bedroom with DAU.  There was just one bed in that room, bigger than a single bed.
43. [43]
    The appellant had a race car coloured principally white with blue.  It was not kept at Y, but at N (the property of TOM and SHL, his grandparents).^[89]  SON could recall going with the appellant in the truck to Brisbane to drop off grain in the 1985 and 1986 period.^[90]
44. [44]
    In cross-examination SON reiterated that there were trips to Brisbane in 1985 with the appellant, carrying grain that was sunflower, sorghum and wheat.^[91]  It was put to him that he never collected any grain from UNK in 1985 and 1986, but said that did not accord with his memory.^[92]
45. [45]
    During the time that the complainant stayed with them for two weeks, the appellant was working and SON could not recall FIN being absent from the house.  He said the children would not have been left at home at that age by themselves.^[93]
46. [46]
    He identified the appellant’s racing car that was sold in 1987, and the replacement which was brought in 1990 or 1991.
47. [47]
    SON had no recollection of seeing the complainant in Dalby in 2018, with the appellant.

Evidence of DAU

48. [48]
    The appellant’s daughter, DAU, gave general evidence about the family, the properties, and meeting the complainant.  During the period when the complainant stayed with them for two weeks, she slept in DAU’s room, in a regular double bed.  She could recall the appellant’s race car being white and blue and it being kept at N.  It did not come to Y.
49. [49]
    Nothing relevant emerged from cross-examination.

Evidence by Senior Constable Helsdon

50. [50]
    Senior Constable Helsdon spoke to the complainant at the front desk of the Police Station on 28 May 2021.  The conversation was recorded and the recording became exhibit 16.  This conversation was properly treated as preliminary complaint evidence.
51. [51]
    Mr Armstrong was a plain clothes senior constable in 2021.  He formally interviewed the complainant and arranged for a pre-text call between the complainant and the appellant.

Evidence by the appellant

52. [52]
    The appellant commenced by referring to recording of the pre-text call.  He agreed that he did not deny the things that were said to him in that call, but explained that the reason he did not do so was “For her welfare, more than anything”, explaining that the complainant seemed “very, very distressed” and had mentioned being to psychiatrist, and therefore he was “not argumented (sic) at all … I was more concerned about her”.^[94]
53. [53]
    He explained that when he talked about having some interaction with the complainant in the pre-text call, the interaction he was talking about “was her and my kiss in 1993”.  He said that was the only sexual interaction of any kind he had had with the complainant.^[95]
54. [54]
    The appellant described the allegations concerning counts 3 and 4 as completely false.^[96]  He said that he was working every day and gone from early morning until dark.  There was no occasion when his wife, FIN, left the house at night time or left the children by themselves.^[97]
55. [55]
    The appellant described his hauling of grain for various entities, and said that there was no occasion when the complainant accompanied him in a truck, to Brisbane or otherwise.^[98] He also denied that there was any time in 1985 or 1986 when he loaded grain from UNK’s property at X.  He said he had never driven grain to the Port of Brisbane.^[99]
56. [56]
    The appellant described the race cars he had owned.  The first was a white and blue Torana which was sold in 1987, the second was a red, black and white Commodore purchased in 1991.^[100]
57. [57]
    The appellant said the first time he may have loaded grain at UNK’s house would have been after 1989 when RAY moved off the family farm.^[101]
58. [58]
    As to the race cars, the appellant said they were always kept at N, and never at Y.^[102]
59. [59]
    The appellant denied that he had ever touched the complainant in the way described by her in respect of counts 1 and 2.  He said that the complainant was never in the truck.
60. [60]
    In cross-examination the following points emerged:

    1. the appellant accepted that on occasions he would visit UNK at X; however, he denied encountering the complainant on any such occasion;^[103]
    2. the appellant accepted that on occasions in 1985 he would help out UNK at X, although not very often;^[104]
    3. he denied helping out in grain loading or moving because he was too busy with his own arrangements;^[105]
    4. he denied that he went to fill up his truck with grain at X at any time in 1985;^[106]
    5. he denied being friendly with the complainant, being interested in her, putting his arm around her shoulder, or giving her a hug;^[107]
    6. he denied that he developed feelings for the complainant in 1985 or 1986;^[108]
    7. questioned about what he said in the pre-text call, the appellant said that what they had was a friendship, not a relationship, and when it was put to him that they were friends, he said “Well, … we weren’t enemies”;^[109]
    8. taken to the pre-text call, and the fact that he did not deny what the complainant said to him about their interaction, the appellant explained the way he responded in this exchange:^[110]

“You didn’t say, did you, ‘You were never in my bed’?---My thoughts on the matter is that I thought you’re – what you’re talking, you’re nuts.

Sorry, can you just ---?---I said ---

---raise your voice a bit and say that one again?--- When she said that to me, I’m thinking to myself that you are nuts.

But you didn’t say that to her, did you?---No, I didn’t.”

9. when taken to that part of the pre-text call concerning her reference to them being in bed and things become “touchy-feely”, he agreed that he had said what the recording showed, but said “I’ve never tried to have sex with her” and “I’ve never tried to have sex with that girl”;^[111]
10. the appellant denied the details of counts 3 and 4,^[112] and the details of counts 1 and 2;^[113] and
11. when taken to the pre-text call again, the appellant maintained that his references to “an attraction for both of us”, and not proceeding to take it any further, was a reference to what happened in 1993, and not events when the complainant was about 13.^[114]

Consideration – unreasonable verdicts

61. [61]
    In giving consideration to this ground of appeal it must be remembered that it relates only to counts 3 and 4, the appellant having been acquitted on counts 1 and 2.
62. [62]
    The essence of the submission made by the appellant is that the complainant’s credibility must have been so damaged by the jury’s rejection of it in respect of counts 1 and 2, that it was not open to the jury to accept her evidence in respect of counts 3 and 4.
63. [63]
    In my view, for a number of reasons that submission must be rejected.
64. [64]
    First, the jury had the benefit of the preliminary complaint evidence.  It is true to say that insofar as the complainant said anything to her mother and brother, it was only in the most vague terms.  The preliminary complaint to the police officer, however, was detailed and consistent with her evidence.  The jury were well aware of the fact that it was made in 2021, when the events happened in 1986.  The entire trial was conducted in the undoubted atmosphere that it alleged historical acts.  In that sense the jury may not have found it all that surprising that little detail was given to a mature woman’s mother and brother.  However, the same cannot be said of the conversation with the police officer.  What the complainant said then bore a striking similarity to her evidence in respect of counts 3 and 4.
65. [65]
    Secondly, the impact of the pre-text call cannot be underestimated.  It can be assumed with confidence that the jury rejected the appellant’s explanations for the way in which he answered the propositions put to him in that call.  The jury would have been right to do so, as the explanations were fanciful.  In context, and including in the words the appellant used, he was plainly referring to a point in time earlier than 1993 when, as he said, he had a brief meeting at a service station with the complainant.
66. [66]
    The pre-text call contained these important elements, keeping in mind that the complainant was 13-14 at the time of the events about which she was talking to the appellant:

    1. the complainant’s assertion that there was a relationship between the complainant and the appellant “when I was younger” and the appellant’s apparent acceptance of that fact;
    2. the response when the complainant raised the fact that she was in the appellant’s bed and things got “a little touchy feely”; the absence of a denial, coupled with the positive statement that “it never went any further” because “really it wasn’t right”, is striking;
    3. later in the call, the appellant volunteered that “at that stage of our lives … its just, just an attraction for both of us”, and “we didn’t proceed to take it any further, which was the right thing to do”; and
    4. then, the appellant again volunteered that he had “feelings” for the complainant “back in those days”, and each of them had “a crush on each other”.
67. [67]
    It was open to the jury to conclude that the appellant was acknowledging that events recalled by the complainant as counts 3 and 4 did, in fact, occur.  His response was consistent with things occurring, but not being taken further.
68. [68]
    Thirdly, unlike counts 1 and 2, on counts 3 and 4 the evidence that the appellant and the complainant were in the same place at the same time was unchallenged.  She did stay in the appellant’s house for two weeks, at a time when the appellant was resident.  True it is that he might have been working during the day, but his insistence, and FIN’s insistence, that there was never a time when the children were alone could well have been understood by the jury to have been eroded by the contents of the diary, exhibit 9.  It records that:

    1. on 7 April 1986, a date directly in the period in question, the appellant and FIN went to Brisbane; there was no suggestion from anyone that the children were collectively taken on that trip; of course, the fact that the appellant went on that trip does not mean he was left alone with the complainant, but the jury could have formed the view that the adamant evidence of FIN could be doubted;
    2. on Saturday 12 April, a date directly in the period in question, the appellant was not working but readying his car for the Kingaroy Speedway; and
    3. outside the time period for counts 3 and 4, but in March and April 1986, there were eight days when the diary recorded the appellant as being at UNK’s property to work on a car trailer.
69. [69]
    Fourthly, when events the subject of the allegations are so remote in time as these were, more than 30 years after they occurred, it would not be surprising to find that the jury’s view of people’s memory is more sanguine than the cross-examination would have it.  A line taken in cross-examination by counsel for the appellant was to ask the complainant whether a particular memory was as clear as some other particular memory, and then elevate that to say that if one memory is shown to be faulty, so too must the other memory be faulty.  The jury were not obliged to accept that line of reasoning, and life experience would suggest it would be wrong to do so.  Here, one set of memories had considerable support, in particular from the pre-text call.  The other set did not.  It was open to the jury to have doubts about counts 1 and 2, falling short of a complete rejection of the complainant’s credit.
70. [70]
    In my view, it was open to the jury to accept the complainant’s evidence, supported as it was by the pre-text call in particular, and be satisfied of the appellant’s guilt on those counts.  Doubts about, or rejection of, the complainant’s evidence in respect of counts 1 and 2 did not necessarily compel the rejection of her evidence in total.  As they were directed, it was open to the jury to accept the evidence on one count whilst not reaching a point of satisfaction on another.
71. [71]
    Put another way, I am unable to reach the conclusion that such weaknesses in the evidence have been identified that they reduce the probative value of the evidence in a way that this court can overcome the advantage enjoyed by the jury in considering the evidence.  I do not consider that there is a significant possibility that an innocent person has been convicted.  I am not satisfied that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt on counts 3 and 4.
72. [72]
    Accordingly, this ground fails.

The failure to give a Longmandirection

73. [73]
    At the trial counsel for the appellant applied for a direction in accordance with s 132BA of the Evidence Act 1977 (Qld). That section provides:

“132BA Delay in prosecuting offence

1. This section applies in relation to a criminal proceeding in which there is a jury.

2. The judge may, on the judge’s own initiative or on the application of a party to the proceeding, give the jury a direction under this section if the judge is satisfied the defendant has suffered a significant forensic disadvantage because of the effects of delay in prosecuting an offence the subject of the proceeding.

3. For subsection (2), a significant forensic disadvantage is not established by the mere fact of delay in prosecuting the offence.

4. In giving the direction, the judge—

1. must inform the jury of—

1. the nature of the disadvantage; and

2. the need to take the disadvantage into account when considering the evidence; but

2. must not warn or in any way suggest to the jury that—

1. it would be dangerous or unsafe to convict the defendant; or

2. the complainant’s evidence should be scrutinised with great care.

5. However, the judge need not give the direction if there are good reasons for not doing so.

6. The judge must not, other than under this section, give the jury a direction about the disadvantages suffered by the defendant because of the effects of delay in prosecuting the offence.

7. In this section—

delay, in prosecuting an offence, includes delay in reporting the offence.”

74. [74]
    The basis for the application was that a witness, FIN, had located her mother’s 1986 farm diary but no-one could locate a 1985 farm diary, it being suggested that one could infer that if she kept a 1986 diary she probably had a 1985 diary.^[115]  Such a diary might have records relevant to all counts, but principally counts 1 and 2 where the complainant’s evidence was related to loading and movement of grain to Brisbane.  Counsel also referred to records of loading and transport of grain,^[116] that being tied to counts 1 and 2, but not 3 and 4.  Counsel eventually focussed on the absence of the 1985 diary, conceding that there was a body of evidence in respect of other matters.^[117]
75. [75]
    The learned trial judge refused the application on the basis that while there was delay, it was not, in the circumstances, significant:^[118]

“… the test is a significant forensic disadvantage and in the factual matrix of this case, my conclusion is that there’s so much evidence, perhaps surprisingly, that does bear directly on those events 37 years ago that there may be a forensic disadvantage, possibly. It’s a bit hard to know. But if there is I don’t conclude it’s a sufficiently substantial one to give the modified delay direction.”

76. [76]
    Before this Court, the appellant submitted that the delay in this case was significant and not in any way caused by the appellant:

    1. the witness FIN gave evidence that she was unable to find further records despite searching; the implication was said to be that such records would contain entries similar to those in the 1986 diary (the only record found);
    2. the loss of records was deserving of a specific direction because such records may have supported the contention that the appellant never transported grain to the Brisbane port.
77. [77]
    It was submitted that in those circumstances, the failure to give a direction was an error of law.
78. [78]
    In Longman in the joint judgment of Brennan, Dawson and Toohey JJ, the following passage appears:

“But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see Reg v Spencer ([1987] AC 128 at p 141). That factor was the applicant’s loss of those means of testing the complainant’s allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant’s story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v District Court (NSW) ((1989) 168 CLR 23 at pp 31 - 32, 42 - 44, 56 - 57, 71 - 72)) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient.”

79. [79]
    In 2020 the Criminal Code (Child Sexual Offences Reform) and Other Legislation Amendment Act 2020 (Qld) created section 132BA.
80. [80]
    In my view, for several reasons the submission must be rejected.
81. [81]
    First, the absence of records other than the 1985 diary were inconsequential given the substantial body of evidence that was led as to the loading and transport of grain, and particularly whether grain was loaded at X and transported to Brisbane.  Those two facts were closely tied to the complainant’s account for counts 1 and 2.  On that topic a number of witnesses were called and gave evidence from their memory, including when the relevant terminal to take such grain opened.  And, there were records as to the race car that impacted upon the complainant’s version.
82. [82]
    Secondly, the submission does not survive as to counts 1 and 2 when it is remembered that the appellant was acquitted on those charges. There could be no miscarriage of justice in respect of those counts.
83. [83]
    Thirdly, as to counts 3 and 4, the existing 1986 diary was the relevant diary, as the charged period was between 4 April 1986 and 1 May 1986.  The diary was in evidence.  It was the absence of the 1985 diary that was at the forefront of the application at the trial, and in submissions on the appeal.  The 1985 diary, if it existed, could not have assisted on counts 3 and 4.
84. [84]
    Fourthly, in so far as records other than the 1985 diary were concerned, there was only speculation that any record would have had a connection relevant to counts 3 and 4.
85. [85]
    Fifthly, in any event the trial judge gave a direction that would have put the jury on notice that they had to carefully scrutinise the complainant’s evidence before being satisfied of guilt:^[119]

“The complainant is the critical witness in this case. You do need to scrutinise her evidence with great care before arriving at a conclusion of guilt. That is not to say that you cannot act on her evidence, but you may only do so if you are convinced of its truthfulness and accuracy, bearing in mind the following matters which may have some effect upon her reliability.

Firstly, she did say at some stage to a professional, inferentially a mental health professional, that she hoped this was a dream and she went to the professional to find out if it was real or not. She wanted it to be a dream. However, when asked about this, she denied being uncertain and says her memory was real.

Secondly, her evidence in the trial as to some matters, such as the defendant carting grain from X to the Port of Brisbane in 1986, and even going in the defendant’s truck alone, is contradicted by some other witnesses, including, for example, her mother.

Another example is [UNK’s] evidence, which tends to contradict the possibility that the defendant and the complainant did interact during any episode of grain-loading at his property.

So there are those contradictions of her version elsewhere in the evidence. So you take those matters into account and scrutinise her evidence with care – with great care before arriving at a conclusion of guilt.”

86. [86]
    This ground fails.

Inconsistent verdicts

87. [87]
    The test to be applied when considering a ground of inconsistent verdicts is not in doubt.  In R v CCX^[120] this Court said:

“[53] Where alleged inconsistency is said to arise with jury verdicts on different counts, the court must apply a test based upon logic and reasonableness, which respects the function of the jury. It is not the role of an appellate court to substitute its opinion of the facts for one which was open to the jury.

[54] In MacKenzie v The Queen, the joint judgment said:

“…[I]f 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.”

[55] The respect which an appellate court must afford the function of the jury is emphasised in the following passage in M v The Queen:

“…the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”

[56] The appellant bore the onus of establishing that the verdicts of acquittal and conviction were an unacceptable affront to logic and common sense and strongly suggestive of, relevantly, the jury having compromised its duty, having been confused or misunderstanding its function.”

88. [88]
    The jury were directed that they were entitled to reject all or part of a witness’ evidence.  Acting in accordance with their oath or affirmation and following the directions of the trial judge the jury’s verdicts are explicable.
89. [89]
    There were several stark differences between the evidence that the jury could accept as to counts 3 and 4, and that in respect of counts 1 and 2.
90. [90]
    First, there was credible evidence by which the offences could be tied to a time period which accorded with the complainant’s memory and established facts.  MUM and UNK were married and left on their honeymoon.  That date was clear in the evidence.  The complainant said she stayed at the appellant’s house during the honeymoon period.  There was no challenge to that evidence.  Therefore, the jury could accept that if the offences occurred they occurred at a time and place that was proven to accord with the complainant’s evidence.  The same could not be said with respect to counts 1 and 2.
91. [91]
    Secondly, the pre-text call contained statements by the appellant that supported the complainant’s version of events.
92. [92]
    The complainant asked why he had started a relationship with her, and the jury could find that the appellant admitted that he had:

“COM: So, um, you know, the issue is that um, you know – I just want to know why you started a relationship with me when I was younger and, you know – was it my fault or was it – I don’t know? Like I have all these questions and …

Def: Yep.

COM: … no answers.

DEF: Oh, I don’t know.  I don’t know if it was anybody’s fault.

COM: Yeah.  So, you know, I remember like the first time that you kissed me.

DEF: Do ya?

COM: Yep.

DEF: Really?”

93. [93]
    The complainant then raised the time that MUM and UNK were away, saying she was in the appellant’s bed and “things got a little touchy feely”.  The exchange continued:^[121]

“COM: Yeah.  And I remember when um, [UNK] and mum were away on their honeymoon and you know, I was in your bed and things got a little touchy-feely and you know …

DEF:  It never went any further.

COM:  So …

DEF:  Yeah, it never went any further though, did it?

COM:  Well, you tried, but nothing happened.  No.

DEF:  Um, yeah.  I wasn’t, I wasn’t pushing the issue because really it wasn’t right.”

94. [94]
    Later in the call the appellant said he had genuine feelings for the complainant at that time, they had a crush on each other, but “we didn’t proceed or take it any further”:

“DEF: So … no, so um, I can’t really remember particularly anything going on.  And now at that stage of our lives I think was probably, you know, for you and me and it’s just, just an attraction for both of us, and um, and there was really nothing more and we didn’t proceed or take it any further, which was the right thing to do.

COM:  Yeah.

DEF:  Yeah.  But, you know, the feelings I had for you back in those days, they were genuine and it wasn’t like just a – it wasn’t, I guess aah, I guess it was just sort of something that we both had, just a crush on each other, if you want to put it that way.  Um, I don’t know how else I can put it, but at least you know, like I said, the feelings that I had for you back in those days, they were genuine feelings, it wasn’t just a … that I was really trying to take advantage of you, or to do anything like that.  It was …

COM: Okay.

DEF: No, that’s how I sort of feel about it, you know?

COM: Yeah.

DEF: And, and um, I really … I hope that it hasn’t done anything to harm you or harm our relationship, you know.  Like I still um, I still feel happy with you and still you know, I’ve never felt ill of you in any way.”

95. [95]
    The jury could accept that evidence as supporting the complainant’s evidence as to counts 3 and 4, and that the offences occurred as she said they did.
96. [96]
    Thirdly, whilst the appellant’s case was that there was no occasion when counts 3 and 4 could have occurred, because his wife was always at home when the complainant was there, the diary (Exhibit 9) has entries that showed the appellant’s wife was absent from the home during the period when the complainant was staying there.  There was, therefore, some support for the complainant’s evidence that those counts occurred while the wife was away.
97. [97]
    Fourthly, there was a body of evidence as to counts 1 and 2 only, that may have caused doubt in the jury’s mind as to those counts.  For example, several witnesses said that the race car was never at Y, because that shed was not set up for working on a car.  Further, there was evidence that the door referred to by the complainant never opened.
98. [98]
    Those considerations compel the conclusion that the verdicts on counts 1 and 2 are not inconsistent with the verdicts on counts 3 and 4.
99. [99]
    This ground fails.

Conclusion

100. [100]
     As discussed in the reasons above, all grounds of appeal have failed.
101. [101]
     I would therefore order:

1. Appeal dismissed.

102. [102]
     CROW J:  I agree with Morrison JA.