R v OAA[2023] QCA 244

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Boddice JA.
2. [2]
   BODDICE JA:  On 4 October 2022, a jury found the appellant guilty of five counts of indecent treatment of a child under 16 (expose), under 12, under care (counts 1, 4, 9, 10 and 14), four counts of indecent treatment of a child under 16 (procure), under 12, under care (counts 2, 5, 6 and 12), five counts of rape (counts 3, 7, 16, 18 and 19) and one count of indecent treatment of a child under 16 (procure), under care (count 17).  The jury found the appellant not guilty of one count of indecent treatment of a child under 16 (procure), under 12, under care (count 8).
3. [3]
   On 6 October 2022, the appellant was sentenced to an effective head sentence of 9 years 8 months imprisonment, to commence at the expiration of a sentence imposed on 15 June 2022.  It was ordered that 126 days spent in pre-sentence custody be taken into account, but not declared as time already served under the sentence.  No order was made as to parole eligibility.
4. [4]
   The appellant appeals his convictions.  He relies on two grounds.  First, that the guilty verdicts are unreasonable and cannot be supported having regard to the evidence.  Second, that the trial judge erred in refusing an application to cross-examine the complainant as to consensual sexual activity.

Background

5. [5]
   The appellant was aged 62 at sentence and between 38 and 42 at the time of the commission of the offences.
6. [6]
   All of the offences, which related to the same male complainant, were committed between 1 June 1999 and 1 March 2003.  The complainant was aged between eight and 12 years at the time of the offending.
7. [7]
   Most of the offences occurred in the context of sexual conduct also taking place between the appellant and his son, TO.  TO was also aged between eight and 12 years at the time of the offending.

Counts

8. [8]
   Counts 1 to 9 arose out of one episode on a date unknown between 1 June 1999 and 1 September 1999.  The acts were committed at the appellant’s residence when the complainant was eight years of age and in grade 3.  The episode occurred after the complainant played Xbox with TO.  The acts were particularised as:

   1. TO giving oral sex to the appellant (count 1);
   2. the appellant putting his penis in the complainant’s mouth and making the complainant perform oral sex (count 2);
   3. the appellant having anal intercourse with the complainant (count 3);
   4. the appellant having anal intercourse with TO (count 4);
   5. the appellant making the complainant put his hand on TO’s penis (count 5);
   6. the appellant telling the complainant to put his penis in TO’s mouth (count 6);
   7. the appellant anally raping the complainant again (count 7);
   8. the appellant making TO put his penis in the complainant’s mouth again (count 8); and
   9. the appellant ejaculating on TO’s buttocks (count 9).
9. [9]
   Counts 10 to 16 were committed about one month later, again, after playing a game on Xbox.  The acts were particularised as:

   1. the appellant masturbating in front of the complainant (count 10);
   2. the appellant having TO perform oral sex on the appellant (count 11);
   3. the appellant having the complainant perform oral sex on the appellant (count 12);
   4. the appellant directing TO to play with the complainant’s backside, including digital penetration (count 13);
   5. the appellant having anal intercourse with TO (count 14);
   6. the appellant making the complainant perform oral sex on TO (count 15); and
   7. the appellant penetrating the complainant’s anus (count 16), before telling TO to put his penis into the complainant’s mouth.
10. [10]
    Counts 17 to 19 arose out of a third episode at the appellant’s residence, about two or three weeks after the complainant’s grandfather died on Christmas Day.  The acts were particularised as:

    1. the appellant having the complainant masturbate the appellant (count 17);
    2. the appellant performing oral sex on the complainant (count 18); and
    3. the appellant having anal intercourse with the complainant and ejaculating on the complainant’s stomach (count 19).

Trial

11. [11]
    At trial, the Crown called the complainant, his partner, his foster parents and two police officers.  Formal admissions were also made as to the date of the appellant’s marriage and details of property ownership, at various times, of the appellant’s residence.  The appellant elected not to give evidence, but called three witnesses: his partner, TO and his niece.
12. [12]
    During the course of the trial the Crown entered a nolle prosequi in respect of counts 11, 13 and 15.  The complainant did not give evidence of any of those acts at trial.

Evidence

Complainant

13. [13]
    The complainant gave evidence that the appellant was the husband of his foster father’s sister; that when he was in grade 3 in 1999, he attended school with TO, who he regarded as his cousin; that TO was some months younger than the complainant; that during that period, the appellant resided with his partner, RO, and TO; that the complainant would spend a lot of time at their house; and that, at the time, the appellant and RO were using the lounge room as their bedroom.
14. [14]
    The complainant said the appellant sexually assaulted him on three occasions.  The first occasion occurred when he was eight and in grade 3.  It was in mid-July because it was “the show time”.  It happened during the school holidays, when the complainant was staying at the appellant’s residence for three days.  The complainant was playing a game called Taxi on Xbox in TO’s bedroom.  After playing the game for about an hour, TO left the bedroom.  Roughly five to 10 minutes later, TO opened the door and asked the complainant to come outside.  The complainant described TO’s face as having a scared look.  It was a face he had never seen before.
15. [15]
    The complainant said he walked outside and saw the appellant on his bed in the lounge room.  The appellant was naked and had an erection.  TO was in front of him, wearing only a shirt.  He had on no pants.  TO was on his knees giving oral sex to the appellant, who was standing in front of him next to the bed (count 1).
16. [16]
    After TO performed oral sex for two to five minutes, the appellant had the complainant put the appellant’s penis in his mouth.  The appellant pulled the complainant’s head towards the penis, moving his head back and forwards (count 2).  The appellant’s penis was hard and erect.  It went on for five to 10 minutes.
17. [17]
    At that point, the appellant told TO and the complainant to get on the bed on their hands and knees.  The appellant took off the complainant’s clothes.  The appellant spat on his penis and on the complainant’s anus.  The appellant inserted his penis into the complainant’s anus (count 3).  It was really, really painful.  It lasted five to 10 minutes.  The appellant had his hands on the complainant’s hips, thrusting into his body.  The complainant did not tell him to stop.  He did not yell out.  He was scared.
18. [18]
    When it stopped, the appellant went to TO.  The appellant spat on his penis, spat on TO’s anus and inserted his penis into TO’s anus (count 4).  TO looked like he was in pain.  The appellant was not saying anything, but he was grunting.  He told the complainant to put his penis in TO’s mouth (count 6).  The complainant was also told to play with TO’s penis at the same time (count 5).  This went on for approximately two minutes.  At the same time, the appellant was raping TO.
19. [19]
    The appellant then raped the complainant “a bit longer” by inserting his penis in the complainant’s anus (count 7).  The pain was 10 times more.  The complainant could smell blood from his anus.  The appellant then inserted his penis into TO’s anus again, whilst having the complainant perform oral sex on TO (count 8).  TO also performed oral sex on the complainant.  It stopped when the appellant groaned, removed his penis from TO’s anus and ejaculated on TO’s bottom (count 9).
20. [20]
    The complainant put on his clothes and ran next door to his aunty’s house.  His aunty and his little cousins were there.  He ran straight to the toilet and tried to wipe himself.  The toilet paper was full of blood.  He then went for a shower.  Any time the water hit his bottom it stung.  When he looked at his feet, there was blood coming down his leg.  By the time he left the shower, he was no longer bleeding.  He did not say anything to anyone that day.  He did not ask his aunty to have his parents come to pick him up.  He was picked up at about 5.00 pm by his foster mother.  He did not tell his foster mother what had happened.
21. [21]
    The complainant said the second occasion occurred roughly one month later, on a Thursday.  The next day was a pupil free day.  He was dropped off after school at the appellant’s house by his foster mother at around 3.00 pm.  No adults were present at that time.  The complainant played Xbox with TO, in his bedroom.  After approximately half an hour, he saw a car come up the driveway.  TO went outside.  He was gone for 10 minutes before coming back and saying, “he wants to do it again.”  The complainant walked to the lounge room.  The appellant was masturbating with his shorts down to his knees (count 10).  The appellant said, “Who wants to go first?”  The complainant replied, “I’m not going first”.  TO did not say anything.
22. [22]
    The appellant grabbed TO’s hand and had TO masturbate the appellant for five minutes.  The appellant took off both their clothes.  The appellant grabbed the complainant’s head and had the complainant perform oral sex on the appellant for five minutes (count 12).  Whilst doing so, the appellant told TO to play with the complainant’s bottom.  TO squeezed his buttocks with both hands, before inserting his finger into the complainant’s anus (count 13).
23. [23]
    After roughly another two minutes, the complainant stopped performing oral sex on the appellant.  The appellant told TO to “climb on top”.  TO was upright, bent on his knees over the appellant’s crotch area.  The appellant spread TO’s bottom, before spitting on his finger and inserting it into TO’s anus and then inserting his penis into TO’s anus (count 14).  At that point, the appellant had the complainant put his penis in TO’s mouth (count 15).  The appellant said, “Suck [the complainant] off”.
24. [24]
    The complainant said the appellant stopped, stood up and told the complainant to bend over.  The appellant spat on the complainant’s anus and penetrated it with his penis (count 16).  The appellant had his hands on the complainant’s hips, pulling the complainant towards him.  It lasted for three to six minutes.  The appellant then told TO to insert his penis into the complainant’s mouth.  After about two minutes, TO ejaculated into the complainant’s mouth.  After that, the appellant went faster, moving backwards and forwards into the complainant’s anus.  The appellant then pulled his penis out and ejaculated on the complainant’s back.  The complainant described the pain as worse, but not much worse than the previous occasion.
25. [25]
    The complainant put on his shorts, wiped off the semen with his shirt, walked to the wheelie bin and threw his shirt away.  He then went to his aunty’s house next door.  The whole situation was no less than half an hour and up to an hour.  His parents collected him at around 4.35 pm that day.  He remembered people at his aunty’s house.  He did not tell them what had happened that day.  He finished crying in the toilet.  His bottom was hurting; it was sore, stinging and bleeding.  There was a lot of blood.
26. [26]
    The complainant said the third occasion happened two to three weeks later, after his grandfather died.  His grandfather passed away on Christmas Day.  Again, it happened at the appellant’s house.  He had been dropped off at about midday.  It was a day he stayed home from school.  There were no adults at the house, just TO.  They played Taxi on Xbox, in TO’s bedroom.  Later, the appellant came home.  He was by himself.  When TO saw the car, he became very scared and agitated.  The complainant told TO he would go outside and TO was not to come out until he told him to do so.
27. [27]
    The complainant walked to the toilet.  Out of the corner of his eye he could see the appellant naked, on the bed, masturbating.  The appellant gave a hand gesture to come over.  He grabbed the complainant’s left hand and put it on his erect penis, moving it up and down (count 17).  This went on for three minutes.  The appellant then took the complainant’s clothes off.  The appellant grabbed the back of the complainant’s head and had the complainant perform oral sex for roughly three to four minutes (count 18).  The appellant then spat and tried to insert his penis into the complainant’s anus.  The complainant cringed and tightened up because of the pain.  He tried a second time, but the complainant again cringed.  On the third time, his penis went into the complainant’s anus (count 19).  The complainant described the pain as excruciating.  This went on for no longer than 10 minutes.  The appellant went slow at first and then started to go faster.  He then rolled the complainant onto his back, lifted up his shirt and ejaculated on his stomach.
28. [28]
    The complainant had a shower at the appellant’s house.  When he walked out of the shower, the appellant gave him a smile.  The complainant went back into TO’s bedroom and started crying.  After 10 or 20 minutes, the complainant’s parents picked him up.  He was not crying by that stage.  He did not tell them what happened that day.  He did not go to his aunty’s house this time because he wanted to be with the TO.  That was the last time the appellant did anything to the complainant.
29. [29]
    The complainant said he would see the appellant during his teenage years.  Once, when he turned 12, at the appellant’s house, the appellant tried “to grab my arse; I got very angry.  I held a knife to his throat.  I said, ‘If you ever touch me or my little brother again, I’ll slice your throat.’”  From that day forward, the appellant never touched them again.  The complainant would see the appellant maybe two or three times every month at family gatherings.  He would speak to the appellant.  On no occasion did he bring up with the appellant what had happened to him.
30. [30]
    The complainant said the appellant brought it up at the complainant’s 21^st birthday.  The complainant was in the smoker’s area having a cigarette.  The appellant said, “… sorry for taking your manhood, sorry for ruining your childhood, hope you can forgive me”.  The complainant told him to “eff off”.  That was the end of the conversation.  There were other people around, but they were not close enough to hear.  He described the appellant’s body language as a “sincere apology”.
31. [31]
    The complainant ultimately made a complaint to police in 2019.  He went with his partner, NC, and his aunty, JP.  He had already told NC, when she was pregnant with their son, who was born in July 2018.  They were in the lounge watching movies.  The complainant was getting agitated and fidgety.  Every time he got intoxicated he would get angry.  NC asked why he was so angry all the time.  The complainant asked her to go outside for a cigarette; he had something to tell her.  He told her he had been sexually abused as a child.  When she asked who did it, he lied and said he could not remember.  He did not want her to think any less of him as a man.
32. [32]
    On the following night, the complainant told NC the person who sexually assaulted him was the appellant.  He said it was rape.  It happened when he was in grade 3.  He told her TO was involved.  The conversation ended with the complainant crying.
33. [33]
    The next day, the complainant told his mother he was “mucked around with as a child” by the appellant.  He did not tell his mother anything else.  NC was present during this conversation.  The complainant also told his father.  He said, “I’m pretty sure you know what happened, but yeah, here it is from my mouth, yeah, I was sexually assaulted”.  The complainant said he was sexually assaulted by the appellant; it was rape and it happened in grade 3.  After he said it was rape, his father broke down.
34. [34]
    The complainant said he did not consent to any of the sexual acts with the appellant.  He did not want to do any of them.  He also did not want to do the acts with TO.  He did those things because he was told to by the appellant.  He would not have done them without that direction.
35. [35]
    In cross-examination, the complainant said he attended the same school as TO for grade 3.  After grade 3, the complainant went to a different school.  He was about six months older than TO.  He accepted the house had been modified and a couple of walls were taken down during the offending period.  He did not accept a bed was only in the lounge area for a short period.  He did not accept the appellant’s bedroom was in another part of the house.
36. [36]
    The complainant accepted he attended a police station on 31 December 2018.  He did not accept he told police the first incident occurred around May or June 2007 and that it ended in about September 2009.  The complainant agreed he told police he was with TO and the appellant; that the appellant demanded the complainant get onto his knees before forcing the complainant to suck the appellant’s penis and then anally penetrating the complainant; and that he and TO were also told to do sexual acts to each other, whilst the appellant masturbated in front of them.  He did not agree he told police it happened regularly, every two weeks or so, over two years.
37. [37]
    The complainant accepted Xbox did not come into Australia until 2002; that the game Taxi, was not released until mid-2002; and that he could not have been playing Xbox or Taxi in 1999.
38. [38]
    The complainant agreed that in his first statement to police, on 14 December 2019, he said the first incident happened when he was dropped to stay at the appellant’s house for two nights.  The complainant said it was two nights and one day, midway through a trip when his father was away for work.  He accepted that in his statement to police he said his mother and father picked him up on the third day from his aunty’s house next door.  That was different to what he had said in evidence, but he denied it was because he was not telling the truth.
39. [39]
    The complainant said that during the three days he stayed at the house, the appellant and RO would go to work in the morning, leaving the complainant and TO at home by themselves.  They would go next door to their aunty’s house for lunch.  He was staying home from school, as was TO.
40. [40]
    The complainant accepted that in his statement to police he said he was dropped at the house on the second occasion at about midday, not after 3.00 pm on a school day, as noted at [21] above.  He was dropped there during the show, but he was not going to the show.
41. [41]
    The complainant also accepted that in his statement to police he said he first saw the appellant standing naked next to the bed.  The complainant said he got his words “jumbled up” in evidence when he said he was laying on the bed.  The complainant denied he was making up what had happened and this was simply something he had seen on pornographic videos.  He could not recall if there was blood in his underpants or on the towel when he dried himself after the shower.  The complainant did not tell his parents because he was afraid.  He thought he would get into trouble.
42. [42]
    The third incident, which only involved him and the appellant, would have been in 2000, when he was going into grade 4, before school started that year.
43. [43]
    The complainant accepted the appellant was bigger and taller; and that when he pulled the knife on the appellant, he could have called out to RO, but he did not.  He was facing the appellant when he put the knife to his throat.  It was a butter knife.  At the time of the knife incident, the complainant said the bed was still in the lounge room.
44. [44]
    The complainant said his 21^st birthday party was not held on his actual birthday, it was two weeks later.  The appellant was present at the party.  He denied he had an argument with TO in the smoking area at the party.

Preliminary complaint

45. [45]
    NC, the complainant’s partner for seven years, gave evidence that some time around the start of 2018, when she was heavily pregnant with their son, she had a conversation with the complainant.  It occurred at their residence in the night-time.  They were having problems in their relationship.  She asked what was the problem.  The complainant replied that something happened to him when he was younger.  He said he did not know who the person was, but that he felt a pillow over his face and woke up the next morning and “his bum was sore”.
46. [46]
    The next night, the complainant said he had lied to her, he did know who it was, “[the appellant] had sexually abused him” when he was eight; he raped him at the appellant’s residence.  The complainant used to go there all the time to play with TO.  It was just him, TO and the appellant.
47. [47]
    The appellant made them have oral sex with each other and then continued to have sex with both of them.  The appellant had sex whilst the complainant was performing oral sex on TO.  It was quite a few times, nearly every time the complainant went over to the appellant’s house.
48. [48]
    NC said the complainant told her that when he was 13 or 14, he was in the kitchen making a sandwich when the appellant tried to “touch his bum”.  The complainant turned around with the knife and held it to the appellant and said if he ever touched him or TO again, he would kill him.  It stopped from then on.
49. [49]
    In cross-examination, NC accepted that the complainant was drunk when he first spoke to her about being sexually abused as a child.  He would drink a lot.  The following morning, NC raised the conversation with the complainant.  The complainant was shocked that he was that drunk that he actually mentioned something to NC.  When they spoke that night, they were both sober.  The complainant told NC she was the only one he had told.  NC kept it to herself.
50. [50]
    The complainant’s foster mother, FA, gave evidence that the complainant changed schools in grade 3, after the Easter holidays.  At the end of that year, he changed schools again.  TO went to the same school when the complainant was in grade 3.  Whilst the complainant was in primary school, she worked as a senior support worker.  Her hours were 8.00 am to 4.00 pm.  Her husband was working different jobs, mostly away from home, for four weeks at a time.  He did not have that job when the complainant was in grade 3.  At that time, he worked 8.00 am to 4.00 pm.
51. [51]
    FA said when the complainant was in grade 3, the appellant was living next door to another relative lived next door.  There was an opening in the fence to go between the houses.  FA dropped the complainant to the appellant’s house.  TO would ask if the complainant could come over.  On occasions, the complainant slept over.  It would be for one or two nights.  FA would always pack the complainant clothes on a sleepover.  On some occasions, FA dropped the complainant outside without going into the house.
52. [52]
    FA said in 2019, at the complainant’s house, NC told the complainant to tell FA “what old man [the appellant] did to him”.  The complainant said the appellant “raped me”.  The complainant said, “He raped me when I was 10 years old”.  FA could not recall any other details.  FA told the complainant to tell his father.
53. [53]
    In cross-examination, FA agreed the complainant did not give any detail about what occurred; he only said he was raped.  FA never saw any blood on the complainant’s clothes, but said he did not come home with his clothes.  She agreed she would not take the complainant over to the appellant’s house on the school day and just drop him off without checking that the appellant or RO were there.  She did not recall ever taking him to their house to have a day off school.
54. [54]
    FA also agreed that she had visited the appellant’s residence and that a bed was placed in the lounge room while renovations were in progress.  It would have been in the lounge room for a few months.
55. [55]
    FA said she organised a party for the complainant’s 18^th birthday.  He did not have a 21^st birthday.  Both the appellant and his partner were present.  The appellant gave a speech congratulating the complainant on his birthday.
56. [56]
    The complainant’s foster father, KA, gave evidence that he knew the appellant prior to the appellant marrying KA’s sister.  KA’s sisters lived next door to each other in  the late 1990s.  You could walk between the properties.  The appellant’s house was renovated in 1999.  They tried to make a bedroom in the front verandah.  TO and the complainant would spend time together.  They were similar in age and size, although the complainant was a bit smaller.
57. [57]
    KA said in 2019, at FA’s house, the complainant said the appellant had been “doing something – stuff to me”.  It started when he was about four or five and finished at 13 when he put a knife to the appellant’s throat.  The appellant played with “his arse” at his residence.  TO was present.  The appellant would do it to TO and make TO do it to the complainant.  That conversation was not even 10 minutes.  He told the complainant to stop as he was getting “wilder and wilder”.
58. [58]
    KA said the appellant had an 18^th birthday party.  Both the appellant and RO were present at that party.
59. [59]
    In cross-examination, KA agreed that the complainant had said his back passage bleeds from time-to-time and that, at the time of that conversation, it was still bleeding.  He had not ever heard of a complaint of bleeding from the back passage prior to that conversation.  He accepted he told the prosecutor the complainant did not have sleepovers.  He would take the complainant to JP’s house for the day.  This was when he was at home and not away from work.  He did not ever drop the complainant off when TO’s parents were not there.  He would not have allowed the complainant to go there on a school day, just to have day off.
60. [60]
    Ashley Seymour, a police officer, gave evidence that he spoke to the complainant on 31 December 2018.  The complainant attended the police station in the company of two women, NC and JP.  He spoke to the complainant in their presence.  The conversation was not recorded.  He did however make contemporaneous notes in his notebook.  The complainant was upset.  He disclosed offences of a sexual nature which occurred when he was a minor.  They specifically related to anal penetration by a male perpetrator.  The complainant nominated the person of interest as the appellant.  He described the offending as having occurred at the residence.
61. [61]
    Seymour said he had written down in his notebook that the complainant was home with his cousin in a lounge room, some time either in May or June 2007.  The suspect was naked.  He demanded the complainant onto his knees and forced him to suck his penis.  The suspect then anally penetrated the complainant, before telling the complainant and his cousin to do sexual acts on each other, whilst the suspect masturbated in front of them.  The complainant reported running home, having a shower and bleeding from his anus.  He reported further instances that occurred over a two-year period, to a similar effect.
62. [62]
    In cross-examination, Seymour said his police training had taught him to be accurate in his notes.  He accepted he had recorded that the complainant had reported multiple further acts of a similar nature over a period of two years “occurring approximately once a fortnight”.

Other evidence

63. [63]
    Bismarck Barros, a police officer, received the complaint initially from Seymour, towards the end of January/start of February 2019.  He obtained a signed statement from the complainant in December 2019.  He also took statements from a number of other people.  He obtained the complainant’s grandfather’s death certificate.  He had died on 25 December 2002.
64. [64]
    Barros sought to obtain a statement from TO on 19 December 2019.  He spoke to him for 10 to 15 minutes.  TO refused to provide a police statement.
65. [65]
    RO gave evidence that she was married to the appellant.  They had culturally adopted TO at birth on 1 May 1991.  She knew the complainant.  His family had initially asked her to take him on.  After six to eight weeks, she spoke to FA and KA and the complainant went to live with them.
66. [66]
    RO said she, the appellant and TO moved to live next door to her sister, JP.  After a while, they renovated their home.  They knocked down a wall to make the lounge room bigger.  They also built a bedroom in the sleep-out, which became their bedroom.  When they commenced the renovations, they left their bed in the lounge area.  It only stayed there for two to three months.  They then moved next door to her sister’s house.  They remained there for approximately one and a half years.  They moved back into their place in mid-1999.  Thereafter, their bedroom was in the sleep-out.  There was no longer a bed in the lounge area.
67. [67]
    RO said the complainant would come over to their house to play with TO.  He would be dropped off at his aunty’s house next door.  There was a gap in the fence to allow the children to travel between the residences.  RO did not leave TO at home by himself.  Once or twice, the complainant stayed over for a sleepover.
68. [68]
    RO said they did not attend the complainant’s 21^st birthday party.  They were invited, but were at the funeral of the appellant’s brother.  The appellant had the role of pall bearer.
69. [69]
    In cross-examination, RO accepted that she may be inaccurate in her dates; that when TO was in grade 3, she would drop him off and pick him up after school, or the appellant would pick him up; that she would take him back to her workplace; that the appellant worked in the same building and she would know where the appellant was each day; that if the appellant picked up TO from school, he would always bring him to the workplace; and that there was never a time that the complainant was dropped off directly to their house.
70. [70]
    RO was adamant she did not attend the complainant’s 21^st birthday.  They had travelled immediately to another regional town on the death of the appellant’s brother, with TO and their niece, KF, in one car.  They stayed in the area for a week and a bit.  TO went back early with KF and others to attend the complainant’s 21^st birthday.  There was no possibility there was an occasion when TO was at home without her or the appellant being present.
71. [71]
    TO gave evidence that he knew the complainant as his cousin; that they had attended school together in grade 3; that, at that stage, he was living with his parents; that his aunty and her family lived next door; that, on occasions, the complainant would have sleepovers, but not very often; that there were no sleepovers during their period in grade 3; that his mother or father would drop him off at school, mainly his mother in those early years of school; that he had an Xbox game unit from 2004; that he got it for a birthday present when he turned 11; that he never had sexual relations with the complainant, or with the appellant; that he attended the complainant’s 21^st birthday party; that the appellant’s brother passed away and they attended his funeral before his cousin, KF, and others returned in a car to attend the 21^st birthday; that neither the appellant, nor RO attended with him; that RO and the appellant stayed in the area after the funeral; and that the party did not end on a good note as the complainant was angry with TO.
72. [72]
    In cross-examination, TO said he and the complainant got on well together growing up.  He accepted the complainant had sleepovers at his house in grade 3.  When he was in grade 3, TO would be picked up after school.  He would be dropped home to his aunty’s house next door.  He would stay there until his parents got home from work.  In grade 6, he was allowed to be at home next door by himself.
73. [73]
    TO said the Xbox he received for a birthday present in 2004 was a limited edition.  He had a limited edition Nintendo 64 before the Xbox.  He had a Playstation 2 between the Nintendo and the Xbox.  They all sat in his bedroom.  He obtained the Nintendo 64 when he was eight or nine years of age.
74. [74]
    TO was aware of the allegations made against the appellant.  He had been told of them by his mother in 2018.  A police officer had come to his house asking him if he would give a statement.  He declined to provide a statement.  He knew the allegations included that he was involved in it.  He did not think he had a choice to tell the officer his side of the story.  He thought “that maybe it could’ve incriminated [the appellant]”.  TO said he is not good with words and if he was caught off guard, he might have said something where it could have incriminated his father.  He accepted he is very close to the appellant.  He denied he was protecting the appellant.
75. [75]
    TO accepted that when he was in grade 3, the complainant and he would play some sort of computer game in his bedroom.  He denied ever observing the appellant doing sexual acts to the complainant, performing sexual acts on the appellant himself, or being involved in sexual relations with the complainant and the appellant.
76. [76]
    KF gave evidence that the appellant was her uncle.  She knew the complainant as TO’s cousin.  She attended the funeral in another regional town in 2011.  Straight after the funeral, she returned to Townsville to attend the complainant’s 21^st birthday party.  TO also came back in the same car.  The appellant and RO stayed in the area.
77. [77]
    In cross-examination, KF said she had a clear recollection of who was present at the 21^st birthday party.  The appellant was not present at that party.

Appellant’s submissions

78. [78]
    The appellant submits that the verdicts are unreasonable and cannot be supported having regard to the evidence, as the complainant’s narrative was fundamentally damaged by variances in his account to the preliminary witnesses.  Those variations included telling KA the appellant began “mucking around” with him at “four or five”; telling FA the appellant raped him when he was “10 years old”; telling NC he was “sexually abused” as a child when he was eight; and telling Seymour that the offending started in May or June 2007, finishing in September 2009, with its repetition being once a fortnight for two years.
79. [79]
    The appellant submits there was also the inconsistency in the complainant’s evidence that all occasions occurred weeks apart, with the third occasion soon after his grandfather’s death, in circumstances where his grandfather died in 2002, three years after the complainant was in grade 3.  There was also evidence that Xbox and Taxi were not available in 1999; the denial by TO of any sexual activity; no witness noticing blood on the complainant’s underwear; and the evidence that TO was not left alone at home when he was in grade 3.
80. [80]
    The appellant further submits that the trial judge erred in refusing an application, pursuant to s 4(2) of the Criminal Law (Sexual Offences) Act 1978 (Qld) (the Act), that he be allowed to cross-examine the complainant about a consensual sexual relationship with TO.  Any consensual sexual relationship with TO would have been expressly denied by TO, thereby being fundamentally relevant to the complainant’s reliability.

Respondent’s submissions

81. [81]
    The respondent submits that the verdicts of the jury were not unreasonable.  The inconsistencies and discrepancies relied upon did not fundamentally undermine the complainant’s credibility and it was open to the jury to find the complainant reliable in respect of each count for which verdicts of guilty were returned by the jury.
82. [82]
    The respondent further submits the trial judge did not err in refusing leave to cross-examine on an alleged consensual sexual relationship with TO.  Such an issue was peripheral to the complainant’s credibility.  In any event, the jury had before it express denials by TO of any sexual relationship with the complainant.

Consideration

Ground 1

83. [83]
    The determination of a ground that the verdicts of a jury were unreasonable requires an appellate court to undertake an independent assessment of the evidence, as a whole, to determine whether it was open to the jury to be satisfied, beyond reasonable doubt, of the appellant’s guilt of each of the offences.^[1]  In doing so, due regard must be afforded to the jury’s special position in seeing and assessing the witnesses.^[2]
84. [84]
    However, if notwithstanding that special advantage, a consideration of the record as a whole, discloses inconsistencies, discrepancies, or other inadequacies which ought to have caused the jury to entertain a reasonable doubt as to the appellant’s guilt, the verdicts are to be set aside as unreasonable.^[3]
85. [85]
    In the present case, a consideration of the record as a whole supports a conclusion that it was open to the jury to be satisfied, beyond reasonable doubt, of the appellant’s guilt of each of the counts.
86. [86]
    First, the complainant’s account in respect of the occasions on which sexual activity took place and as to the acts on each occasion was, in all material respects, consistent with what he was recorded to have told police, both in 2018 and 2019, and with what he had told his partner and his foster parents by way of preliminary complaint.  That consistency was telling in circumstances where there were three specific occasions and multiple acts on each occasion.  There was also evidence that a bed was in the lounge room for a period during renovations, which had commenced in 1999.
87. [87]
    Second, inconsistencies in his account to Seymour and the preliminary witnesses, as to the date on which the offending took place, were not of a nature which required the jury to conclude that the complainant lacked reliability in respect of the central allegations of sexual offending by the appellant.  A witness may be honestly mistaken, having regard to the effluxion of time.  Further, in Seymour’s case, there may have been a misunderstanding as to what the complainant said as to when the offending commenced, and as to its frequency, particularly as there was no suggestion Seymour questioned the complainant extensively and there was no suggestion he was afforded an opportunity to review Seymour’s notes.
88. [88]
    Those matters are also supported by this Court’s observations in R v Miller:^[4]

“…Honest witnesses are frequently in error about the details of events. Also, it is to be expected that any complainant of a sexual assault would approach the task of confiding [his] story in different ways depending upon the nature of [his] relationship with the person to whom [he] is speaking, the circumstances surrounding that conversation, [his] age at the time of giving the account as well as many other possible factors. Further, a submission of this kind assumes that the witnesses to whom preliminary complaint was made all gave scrupulously accurate accounts while the complainant’s recollection is to be regarded as suspect where it is in conflict with them.”

89. [89]
    Third, the fact that Xbox and Taxi were not available in 1999 did not mean the jury must conclude that the complainant was unreliable.  TO gave evidence that he had a Nintendo 64 when he was in grade 3 that he played with the complainant in his bedroom.  It was open to the jury to be satisfied that the complainant was reliable and credible in respect of his evidence that he had been playing games with TO in his bedroom on each of the occasions of the offending, but was genuinely mistaken as to the form of the gaming device and the game.
90. [90]
    Fourth, the fact that no witness gave evidence of noticing bleeding in the complainant’s underwear did not render his evidence of rectal bleeding unreliable.  There was no suggestion the complainant suffered bleeding of a nature which regularly soiled his underwear.  To the contrary, his evidence was that the bleeding on the occasions he identified ceased by the time he had finished showering, after the commission of the offences.
91. [91]
    Fifth, it was open to the jury to reject TO’s denials and the evidence that he was never left alone at the house in grade 3.  TO’s evidence, in particular, had a curiosity, namely, his explanation for not speaking to police because he might “incriminate” the appellant.  That curiosity allowed the jury to reject his denials.
92. [92]
    Finally, the appellant’s acquittal on count 8 does not give rise to any irredeemable credibility issues.  That verdict was explicable based on the evidence of differing level of detail and the directions in the summing up in respect of that count.  The appellant conceded no issue of inconsistent verdicts arose in respect thereof.
93. [93]
    The verdicts of the jury were not unreasonable.

Ground 2

94. [94]
    Section 4(2) of the Act permits leave to be granted to cross-examine a complainant about other sexual activity if there are special circumstances which would render the cross-examination likely to materially impair a confidence in the reliability of the complainant’s evidence.  That discretion is restricted by virtue of s 4(3) of the Act to cases where the matter would either have substantial relevance to facts in issue or be a proper matter for cross-examination as to credit.  The relevant principles on such an application were recently summarised by this Court.^[5]
95. [95]
    The evidence sought to be the subject of cross-examination was an account by the complainant of a consensual sexual relationship with TO, which would be the subject of a sworn contradiction by TO in evidence.  While such a circumstance may, depending on the overall circumstances, give rise to special circumstances, an account of a consensual sexual relationship with TO, which was the subject of denial, was not in such a category.
96. [96]
    TO was already giving evidence of a denial of any sexual relationship with the complainant, consensual or otherwise.  As the respondent properly observes, that evidence was already before the jury.  If the application had been allowed, it would have been another uncorroborated allegation by the complainant, which stemmed from the offences themselves, and an uncorroborated denial of it by TO.
97. [97]
    In those circumstances, cross-examination in respect of a consensual sexual relationship with TO did not have a capacity to likely materially impair the reliability of the complainant’s account.  If the jury did not accept TO’s denial of any sexual activity with the complainant, his denial of a consensual sexual relationship with the complainant is unlikely to have caused any greater impairment in the complainant’s account such that special circumstances existed to allow cross-examination as to credit.

Conclusions

98. [98]
    The verdicts of the jury were not unreasonable.  There is not a material risk that an innocent man has been convicted of the offences.
99. [99]
    Further, there was no error in the trial judge’s refusal to permit cross-examination of the complainant in respect of an alleged consensual sexual relationship with TO.

Orders

100. [100]
     I would order:

1. The appeal be dismissed.

101. [101]
     MARTIN SJA:  I agree with Boddice JA.