R v FBE[2023] QCA 248

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Bond JA.
2. [2]
   BOND JA:  On 16 November 2022 the appellant was convicted of indecent treatment of a child under 16 years (count 1).  He was sentenced to four months’ imprisonment immediately suspended for an operational period of 12 months.  He was acquitted of three counts of indecent treatment (counts 2, 3 and 4).
3. [3]
   In a particulars document which was provided to the jury the counts were detailed in the following manner:

“At a sleepover at the defendant’s house after mowing the defendant’s lawn

Count 1  that between the twenty-eighth day of February, 2021 and the first day of April, 2021 at … in the State of Queensland, [the appellant] unlawfully and indecently dealt with [the complainant] a child under 16 years.

The defendant used his hand to touch the complainant’s genital region over the top of the complainant’s clothing.

In the Bundaberg area on a trip with the defendant - after catching a bird

Count 2  that between the thirty-first day of March, 2021 and the seventh day of April, 2021 at Bundaberg in the State of Queensland, [the appellant] unlawfully and indecently dealt with [the complainant] a child under 16 years.

The defendant used his hand to touch the complainant’s genital region over the top of the complainant’s clothing.

In the Bundaberg area on a trip with the defendant - when the complainant drove the car

Count 3  that between the thirty-first day of March, 2021 and the seventh day of April, 2021 at Bundaberg in the State of Queensland, [the appellant] unlawfully and indecently dealt with [the complainant] a child under 16 years.

The defendant used his hand to touch the complainant’s genital region over the top of the complainant’s clothing.

Count 4  that between the thirty-first day of March, 2021 and the seventh day of April, 2021 at Bundaberg in the State of Queensland, [the appellant] wilfully and unlawfully exposed [the complainant], a child under 16 years, to an indecent act by [the appellant].

The defendant exposed his penis to the complainant.”

4. [4]
   The appellant appeals his conviction in respect of count 1.  He advances two grounds of appeal.  By ground 1 he contends that the conviction on count 1 was unreasonable as the conviction on that count was inconsistent with the acquittals of on each of counts 2 to 4.  By ground 2 he contends that the verdict on count 1 was unreasonable or cannot be supported having regard to the evidence.
5. [5]
   It is convenient first to summarise the evidence at trial and then to consider the appeal grounds in reverse order.

The evidence at trial

6. [6]
   The evidence at trial was in narrow compass.  The Crown adduced evidence from the complainant; from preliminary complaint witnesses; and tendered through the investigating police constable a recorded pretext call with the appellant and also a record of interview conducted by the police with the appellant.
7. [7]
   The preliminary complaint witnesses were:

   1. the complainant’s school friend, SFR;
   2. the complainant’s sister, STR;
   3. the appellant’s then girlfriend, GFR;
   4. the complainant’s mother, CMM;
   5. CMM’s wife, the complainant’s stepmother, CSM.
8. [8]
   The appellant neither gave nor called evidence.
9. [9]
   At the time of the alleged offending the appellant was aged 27.  He lived with his girlfriend GFR, who was a good friend of the complainant’s mother, CMM, and also of CMM’s wife, CSM.  The complainant would have been aged between 13 to 14 at the time of count 1 and 14 at the time of each of counts 2, 3 and 4.  He was 15 at the time he gave his pre-recorded evidence which was heard by the jury at the trial.

The complainant’s evidence

10. [10]
    In his pre-recorded testimony, the complainant’s evidence in chief comprised his stating that the information he told police on 26 April 2021 was true.  The body of his evidence was contained in the recording of his interview with police.
11. [11]
    In that interview the complainant gave evidence supportive of each of the counts but also of sexualized conduct of the appellant towards him on other occasions apart from the four specific counts, which the Crown relied on as proof that the defendant had a sexual interest in the complainant and was prepared to act on it.
12. [12]
    As to count 1, the complainant described what had happened at the appellant’s house on the last time he had a sleepover.  This was about 3 weeks to a month before Easter in 2021.  He and the appellant were playing video games, specifically Call of Duty.  The complainant recalled that the appellant was drinking and during the game, the appellant would hold his fist up by way of congratulation to the complainant if he had made a good kill or good move.  However, the complainant recalls that when the rest of the house went to bed, the fist bump for a good move turned into the appellant placing his hand on the complainant’s upper leg and moving his hand to the point where his hand or some part of it touched the complainant’s penis over the top of his clothing.
13. [13]
    The complainant’s evidence as to counts 2 to 4 was that the events the subject of those counts took place about a month after the events of count 1, during the Easter school holidays of 2021 when the appellant took the complainant on a trip to the appellant’s father’s property near Bundaberg.  The complainant’s recollection was that they left on the Wednesday and came back on Tuesday.
14. [14]
    As to count 2, the complainant’s evidence was that he and the appellant were in the car and the appellant was driving at night.  They were looking for something to shoot, using a torch to look for the red eyes of animals.  They came up to a pond; saw a little bird; and the complainant caught the bird and brought it over to the appellant.  The complainant put the bird back.  The appellant congratulated the complainant for his catch by placing his hand on the complainant’s leg, and then the area of his penis, on the outside of his clothing.  Specifically, the complainant stated that the appellant touched his penis with his hand and then moved his “thumb and index finger over a bit”.
15. [15]
    There was, however, a degree of confusion in the details explained by the complainant.  As to this:

    1. The complainant said – referable to the events after catching the bird – that:

“And um, he's like, congratulating me, putting his hand on my leg and over, and then um, I put it back, and then as we're driving um, w-, he doesn't do it while he's dr-, driving, but when I start driving on the way home um, he does it because it's like, his way of congratulating me, I guess.

…

and he'd always do that um, and like, touch me when I was driving mainly.”

2. That passage seemed to suggest that the touching must have occurred when the complainant was driving on the way home after catching the bird and putting it back, which suggests that the appellant was touching him on his left leg.
3. However, immediately after making that observation, he was asked again where he was when the appellant touched him after he put the bird back and he answered that he was in the passenger seat and the appellant touched him on his right leg.

16. [16]
    As to count 3, the complainant’s evidence was that he and the appellant were driving in an old rusted out Suzuki which had the roof cut off.  The complainant was driving and was learning how to change the gears smoothly.  When he succeeded the appellant congratulated him by saying “good shit man”.  He then put his hand on the complainant’s left leg, moved it over a “tiny bit” and used part of his hand to touch the area of his penis.  The complainant remembered the appellant using “the pinky to edge of his palm” to touch his penis over his clothes.
17. [17]
    As to count 4, the complainant’s evidence was once they had finished parking the Suzuki the appellant got out of the car and walked away from the complainant to the bush to urinate.  The complainant looked away.  As the complainant looked back as the appellant was walking over, he saw that the appellant had left his penis out.  The appellant said something along the lines of “look at it”.  The complainant responded, “that’s gross" and turned around to walk away.  The appellant put his penis away and laughed.
18. [18]
    As to sexualized conduct of the appellant towards the complainant on other occasions:

    1. The complainant made a number of generalised comments apparently referable to sleepovers at the appellant’s house, but not specifically referable to count 1:
       1. Since late 2020 on sleepovers, “once his girlfriend would go to bed… instead of… high fiving or something, he'd end up moving his hand to… touch down there”.
       2. The appellant would “usually touch me… later at night, or when it’s just us during the day”.
       3. “[W]henever he’d touch me, it’d be when [his girlfriend] went to bed”.
       4. When it was starting, “it’d be like, late at night after he had a fair few drinks… when we were playing Call of Duty… [and] I would like, get a kill or something, he’d be like good job, and then touch [my genitals]”.
       5. “[A]ll the nights that I stay over is basically the same as [the events of the last sleepover – count 1]”.
       6. The actions of the appellant started a month or two before the end of 2020.
    2. The complainant made a number of general comments about conduct which occurred when he was driving a car, not specifically referable counts 2 or 3:
       1. Sometimes when teaching him to drive, the appellant “put his hand on my leg and moved it over a bit”.
       2. “[W]hen we were driving the car at night [in Bundaberg]… every time that  like, I’d make a good decision or do something correct and go to like, get out of a sticky situation… [he would] put his hand on my leg and then move it over and touch [my genitals]”.
       3. “[W]henever we drive the car… [and] I would make a good decision… he’d be like, good shit, and then put his hand on my leg and move it over a little bit so it’s just touching [my genitals]”.
       4. On the car trip, “whenever he would… touch it, I would like, move over… so that like, the hand’s like,  basically off my leg and then he’d move it away”.
       5. It happened “maybe between two to three” times the last time the complainant was driving the car.
       6. On the way home from the events of count 2 “he put his hand… on my left leg… [and] moved it over so his thumb was touching… my left [testicle]”.
    3. At the appellant’s house and when they were both in Bundaberg, the appellant would ask the complainant if he had ever watched pornography and get him to talk about it, calling him “step bro” in the process.
19. [19]
    It should be recorded that the jury were given an appropriate direction on the use which they could make of the evidence of discreditable conduct.
20. [20]
    In relation to preliminary complaints, the complainant had said that he had spoken to his stepmother CSM; to GFR after she had broken up with the appellant; to his school friend SFR but he was the only friend he had told; and to his sister STR.  He also told three teachers at school and they told him to tell his parents.  (The teachers were not called and the jury were directed that the complainant’s evidence of telling them was of no significance and would not assist them.) Then his parents were told.  It should be noted that the jury were given an appropriate direction on the use which they could make of the preliminary complaint evidence.
21. [21]
    During cross-examination:

    1. Although in his interview with police he said that he thought he had travelled to Bundaberg on the Wednesday, the complainant agreed that he travelled to Bundaberg on the Friday before Easter and agreed that would have been 2 April 2021.  The trip was to the appellant’s father’s property which is about 160 acres or so outside Bundaberg.
    2. The complainant agreed that the appellant had not touched him inappropriately during the drive to Bundaberg.  He agreed that at the property they slept in separate bedrooms and there was no attempt to touch him inappropriately on the night they arrived.
    3. The complainant identified photographs of the old Suzuki.  He agreed that it had no headlights and he wouldn’t have been driving it at night.  He agreed that when the appellant was instructing him on how to change gears the appellant would tap or bump him on his left leg.
    4. The complainant identified photographs of a Nissan vehicle which was also at the property and in better condition than the Suzuki.  He acknowledged that the plan was that he would get some skills driving the Suzuki before progressing on to the Nissan.  The complainant also agreed that when he drove the Nissan there were times when the appellant would tap or bump him on his left leg as an indication to put in the clutch to change gear.
    5. It was suggested that the appellant did the same thing when he was congratulating the complainant on doing a good job.  The complainant said the appellant would not bump his leg, but would put his hand on the complainant’s upper thigh and move it over for a couple of seconds.
    6. The complainant’s attention was drawn to his evidence concerning people he had told about the appellant’s conduct.  The following passage was then significant:

“All right. I’d like you to think about this. At any point when speaking to them, did you express any doubt as to whether or not [the appellant's] actions in touching you in the way you said he did were deliberate or not?---Yes, I would always experience that feeling of doubt, although they all told me that it – like, it probably wasn’t an accident, although I would – I would continuously question it.

Okay. Because you thought that that might have been a real possibility, didn’t you?---Yes.

And that’s why you said to the police – and I’ll just read from a passage in – from what you told them, okay?---Mmm.

It’s at page 5 at about line 28. You said this when you spoke to the police:

Because it’s kind of, like, congratulating me, but I don’t know that if the whole thing that, like – if it might have been an accident. Like, my parents are saying is what – it wasn’t. His ex-girlfriend is saying it wasn’t. So I don’t know.

You remember telling that to the police?---Yes.

And that’s, by the sounds of it, still the way – when looking back at it now – you feel?---Yes.

All right. And the other things you told the police about were occasions when you and he would be up playing Xbox. And I think mainly playing Call of Duty, probably late into the night?---Yes.

Okay. And there was this similar type of touching, wasn’t there?---Yes.

And, again, looking both then and now, you couldn’t be certain it wasn’t an accident?---Yes.”

SFR’s evidence

22. [22]
    SFR’s evidence was in the form of a recorded interview with police and pre-recorded testimony.  He was 14 when his interview with police took place on 3 June 2021.  SFR told police that the complainant had told him that when the appellant was a bit drunk and sometimes when they were playing games like Call of Duty at the appellant’s house, the complainant would get a few “kills” against him and the appellant would touch him inappropriately by grabbing his leg near his penis and sometimes touching it.  He also said that the complainant told him that sometimes when they were mucking around the appellant would “grab him in the wrong places and stuff”.  He also mentioned that the complainant told him that when the appellant was drunk he would pull his penis out and expose it to the complainant.  SFR’s evidence was not clear about when the disclosures occurred.  He first said that it was “about a month ago” but when pressed said that he could not really remember.  In cross-examination he gave evidence that the disclosures took place before the complainant had spoken to the police.  If that occurred on 26 April 2021, then they must have occurred before then.

STR’s evidence

23. [23]
    STR was 17 at the time she spoke with police on 7 June 2021.  The recording of her interview was tendered and played to the jury.  Her evidence in chief comprised attesting to the truth of what she told police in the interview.
24. [24]
    She told police that at the start of 2021 or at the end of 2020 (but probably after Christmas) her brother had mentioned that the appellant had “touched his privates”.  She said her initial response was that he should just walk away and not go over to the appellant’s place if it makes him feel uncomfortable.  She thought that her brother still went over to the appellant’s place because he felt obligated (it later became clear that was because he had made a commitment to mow their lawn) and because the family was so close with GFR.
25. [25]
    She then said that when it really “came into play” was when she had a conversation with her brother at school, when he complained that a teacher was making him see a guidance counsellor.  During the course of that conversation, her brother told her that the appellant was still touching him and that when they had gone to Bundaberg the appellant had showed her brother his privates, and was still touching him and making him feel really uncomfortable.  She told him that he had to tell CSM and CMM.  He became upset and was sobbing.
26. [26]
    She was asked to elaborate on the first conversation. She conveyed that the conversation occurred the day after she and her brother had had a sleepover at the appellant’s place and when they were walking home from school or had just arrived home.  She recalled that her brother had mentioned it happened the previous night after he and the appellant were playing a video game and the appellant was drunk.  She clarified that on that occasion her brother had said that the appellant had touched him “down there”, he only mentioned “privates” during the conversation which occurred at school.
27. [27]
    She was asked to elaborate on the conversation at school.  She said that her brother had explained that the appellant had touched his penis.  She said that her brother said the appellant had showed her brother his privates whilst on the Bundaberg trip.  She was not able to say that any further detail was conveyed to her.
28. [28]
    She was asked for detail about the video games which her brother and the appellant played when they stayed at the appellant’s residence.  She said that she felt that most of the time they were playing Call of Duty or Warzone.
29. [29]
    During cross-examination:

    1. She said that she and her brother from time to time would go and stay at GFR and the appellant’s house.  She acknowledged that she had never seen any inappropriate conduct by the appellant towards her brother.
    2. She was asked about the conversation between her and her brother which took place at school.
    3. She accepted that one of the things she remembered was that her brother had told her that he had indicated to the appellant “no” or words to that effect.
    4. She also said that her recollection was that her brother had conveyed to her that the appellant had exposed his privates to him on more than one occasion during the Bundaberg trip.

GFR’s evidence

30. [30]
    GFR was 29 at the time she gave evidence at the trial.  She had been the appellant’s partner for about 11½ years.  They lived together.  Their relationship ended on around 20 or 21 April 2021.
31. [31]
    She knew CSM and CMM and had known them for years.  She knew CMM’s children.  When she lived with the appellant, the complainant and his sister used to come over quite often, at least a couple of times a month.  The complainant used to come over fortnightly to do the lawn and some yard work around the house.  The complainant and his sister also used to stay overnight regularly.  It was roughly once a month.  There were some occasions in which the complainant was there by himself.
32. [32]
    She said the appellant and the complainant spent time together.  Some of that time involved them playing video games.  They played a combination of games like Call of Duty, Fortnite and Cyberpunk.  She joined in some times.  When she did it was to play Call of Duty.
33. [33]
    Shortly after GFR and the appellant broke up GFR had a conversation with CSM.  Directly after that she had a conversation with the complainant in which the complainant told her that the appellant had been inappropriately touching him over a period of months.  He was not more specific than that with her.
34. [34]
    During cross-examination:

    1. She acknowledged that she had never seen any inappropriate behaviour by the appellant towards the complainant.  She never had any cause for concern.
    2. She said she knew that the appellant and the complainant went on a trip to visit the appellant’s father at Bundaberg.  Initially she was supposed to go on that trip.  She did not want to go and made the suggestion that the appellant should take the complainant.

CSM’s evidence

35. [35]
    CSM said that CMM was her wife.  They had been together for 9 years and had lived together for about 8 years.  She was close to CMM’s children.  She knew the appellant because he was the partner of GFR, who was one of her close work friends.  She knew that the complainant and STR used to go over to GFR and the appellant’s house and stay overnight from time to time.
36. [36]
    She was asked whether the complainant had ever made any disclosures to her in April 2021.  She was not sure if it was April but she recalled getting a call from the school after which she had a conversation with the complainant in which he made disclosures to her.
37. [37]
    She recalled the complainant told her that he had been over to GFR and the appellant’s house and, on occasions the appellant would sit really close to him while he was playing the PlayStation and would put his hand on his leg and the complainant would move away.  There were occasions where his hand had risen relatively high up his leg, to the point where his fingers were touching the top of the complainant’s penis above his shorts.
38. [38]
    She recalled the complainant also told her that on a trip where they had gone down to Bundaberg it had happened a bit more frequently and that the appellant had exposed himself.  She was pretty sure the words that come out of the complainant’s mouth were “we were at the campfire and [the appellant] pulled his pants down and showed me his dick.”
39. [39]
    During cross-examination, she acknowledged that she was good friends with GFR.  She knew the appellant through her relationship with GFR.  She saw the appellant as someone who could be an older male that the complainant could feel comfortable with and who he could talk to.  The complainant was encouraged to speak with the appellant and to spend time with him.  She confirmed that she had made a recorded call to the appellant from the police station.

CMM’s evidence

40. [40]
    CMM was the mother of the complainant and STR.  She was CSM’s wife.  She knew the appellant because he was the partner of GFR, who was a mutual friend of her and CSM.  She knew that the complainant and STR used to go over to GFR and the appellant’s house and stay overnight from time to time.
41. [41]
    She said that she had a conversation with the complainant in which he had made some disclosures in relation to the appellant.  It had occurred after she had a phone call from school.  She recalled that the disclosure concerned some inappropriateness happening between the appellant and the complaint.  Her best recollection was that the complainant had disclosed that the appellant had his hand higher up on the complainant’s leg while they were away at Bundaberg on the trip in Easter 2021.  She also recalled that the complainant had disclosed that the appellant had been drinking at the time.
42. [42]
    During cross-examination, she said that before the complainant had raised these issues with her, she had felt that he and the appellant had a good relationship and she accepted that in her statement to police she had described the appellant as very much a trusted male figure in the complainant’s life.

Senior Constable Smith’s evidence

43. [43]
    SC Smith was the investigating officer in relation to the complainant’s allegations.  He was the officer who interviewed the complainant.  He arranged for the pretext call between CSM and the appellant.  The recording of that call was tendered through him and then played to the jury.  He also conducted a record of interview with the appellant.  The recording of that interview was tendered through him and then played to the jury.
44. [44]
    As to the pretext call between CSM and the appellant:

    1. The call took place on 8 June 2021.
    2. CSM commenced by saying that she had to talk to the appellant and asked what happened when he and the complainant went to Bundaberg.  When asked what she meant, she said that the complainant had got to the point that he was uncomfortable going to the appellant’s house.
    3. In response the appellant suggested that he had had conversations where he had to discipline the complainant about listening well.
    4. CSM said that the complainant had spoken to her and CMM and that he felt that there was some inappropriate touching.  The appellant denied that had occurred.  In response to her question whether he had any idea where the complainant’s suggestion had come from he said:

“Nah, no idea. Nup. After I drank, that, that would be the fucking issue. It would just be me getting drunk.”

5. When pressed further about the strangeness of the complainant suddenly changing his attitude to hanging out with the appellant, the appellant again suggested that it must come from conversations in which he had to discipline the complainant about listening properly.

45. [45]
    As to the record of interview between SC Smith and the appellant:

    1. The interview took place on 10 June 2021.
    2. SC Smith explained that he was making inquiries in relation to an alleged assault against the complainant.  He started by enquiring about the trip to Bundaberg.  The appellant acknowledged that he and the complainant had driven to Bundaberg to visit the appellant’s father, who lives there.  They drove in the appellant’s black ute.  The appellant was not sure whether it was at Easter, but agreed that it probably was.
    3. The appellant thought that they were in Bundaberg for four days.  He said that on the trip he tried to teach the complainant how to drive and to smoke meats.  The driving lessons were in a “rusted old bomb” motor vehicle, the make of which he did not know.  The complainant crashed the car on multiple times.  The appellant said that there was no occasion when he was teaching the complainant how to drive that anyone caught a bird or any animals or did any hunting.
    4. SC Smith put to the appellant that the complainant had stated that when he was with the appellant driving a rusted vehicle, he would be changing gears and when the appellant complimented him on making a good gear change, the appellant put his hand on the complainant’s left leg and touched the complainant’s penis over his clothing.  The appellant could not explain why the complainant would say that and denied that it had ever occurred.
    5. When pressed to offer an explanation for the complainant’s allegations, he said he had no idea other than that he had had to have a conversation with the complainant in which he had very firmly told the complainant that he had to start listening and had to acknowledge his poor behaviour by leaving mess around.
    6. SC Smith further put to the appellant that on the same occasion the appellant’s hand had travelled further up the complainant’s leg to rest on his left testicle and that the complainant had had to reposition his body so that the appellant’s had would be removed.  The appellant denied that had happened.
    7. SC Smith put to the appellant another suggestion, namely that earlier in the trip the complainant was driving a different car, an old Suzuki which did not have a roof.  The complainant said that the appellant had put his hand on his left leg and slid it up towards his groin area before resting the back of his hand on the complainant’s penis over his clothing.  The appellant denied that had happened.  He said that the Suzuki was the car in which he was teaching the complainant how to drive.
    8. SC Smith put to the appellant a further incident.  He suggested that the complainant had said that later, after they had stopped the vehicle, the appellant had walked away; the complainant thought that he may have been behind a bush; the complainant called out asking where he was; the appellant said that he had been urinating then approached the complainant with his penis hanging out and invited the complainant to look.  The complainant responded that that was gross and the appellant laughed and put his penis back into his pants.  The appellant denied that ever happened.
    9. SC Smith then put to the appellant the complainant’s description of what had happened at the appellant’s home.  The appellant denied that ever happened.  He did not recall the complainant and his sister coming to say the last time they did.  He acknowledged that they had stayed a couple of times.  He said that he did not remember ever playing Call of Duty with the complainant although he acknowledged that he had that game.  (The prosecution relied on his denial in this respect as a lie going to his credit.)
46. [46]
    Cross-examination did not elicit any relevant information save that SC Smith agreed that his training when interviewing children was that the questioner would not actively challenge the account provided by the child; that it was important not to try to influence answers and not to use leading questions but, as far as possible, to use open ended questions; but that one of the questions on his pro forma approach was to ask the child whether anybody has told the child not to say anything about the events in question.

Ground 2: The verdict for count 1 was unreasonable or cannot be supported

47. [47]
    The approach which this Court should take in consideration of this ground is not in doubt.  The Court must consider 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: see M v The Queen (1994) 181 CLR 487 at 493 and Dansie v The Queen (2022) 274 CLR 651 at 657 and 658.  Importantly, in answering that question the Court must not disregard or discount the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence.  I apply the principles summarised in further detail in R v Mirotsos [2022] QCA 76 at [68].
48. [48]
    The Crown case rested entirely on the evidence of the complainant.  His evidence supported count 1.  His credibility in relation to his evidence on count 1 and on the existence of other similar discreditable conduct on earlier similar sleepovers found support in the preliminary complaint evidence of his school friend and, in relation to the earlier similar sleepovers, of his sister.  His sister and the appellant’s girlfriend also gave direct evidence corroborating the complainant’s evidence concerning playing Call of Duty with the appellant and contradicting what the appellant said in his record of interview on that subject.
49. [49]
    The jury were entitled not to accept the denials made by the appellant in his record of interview and to regard as implausible his attempt to explain the allegations as deriving from his attempts to discipline the complainant.  I accept the Crown submission on appeal that the complainant’s evidence in relation to count 1 was plausible, clear and consistent in relation to the material aspects, and it was not eroded by cross examination in any material aspect.  The jury were entitled to accept the complainant’s evidence in relation to count 1.
50. [50]
    Before this Court, and as he did at trial, the appellant relied heavily on the passage of cross-examination which I have quoted at [21](f) above.  The appellant said that the doubts so expressed relate to all counts and created sufficient concerns as to the reliability of the complainant as to justify the appeal ground.  I reject this submission.  The concession by the complainant of his doubts was not a concession of doubts as to the accuracy of his evidence as to what he saw and felt the appellant do.  It was a concession of his doubts as to whether he could infer from what he saw and felt that the appellant’s touches were intentional and not accidental.  But that was not a question for him.  That was one of the critical questions for the jury.  The fact that a boy holds doubts on that issue in relation to the behaviour of a man who was a trusted figure in his life does not mean that the jury necessarily had to hold such doubts.  Nor does it mean that I have to hold such doubts.  The complainant’s concession was not an insurmountable obstacle to the jury being able to be persuaded beyond reasonable doubt of the appellant’s guilt in relation to count 1.
51. [51]
    Having reviewed the evidence, I find that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of count 1.  Appeal ground 2 fails.

Ground 1:  The verdict for count 1 was unreasonable because it was inconsistent with the verdicts for counts 2, 3 and 4

52. [52]
    The principles applicable in determining this ground are well established and were recently summarised by Flanagan JA, with whom Bradley J and I agreed, at R v ABI [2023] QCA 166 at [51].
53. [53]
    In my view there was no relevant inconsistency between the conviction on count 1 and the acquittals on counts 2, 3 and 4.  The difference in the verdicts was explicable.
54. [54]
    First, the quality of the complainant’s evidence was stronger in relation to count 1 than it was in relation to counts 2, 3 and 4.  The evidence was at a higher level of generality in relation to counts 2, 3 and 4.  For count 2 there was some confusion as to whether the complainant was in the passenger seat or was driving.
55. [55]
    Second, as to count 4, there was some inconsistency between the circumstances of the event as related by the complainant in his pre-recorded testimony and as the preliminary complaint witnesses recalled the complainant related to them.  Further, the jury may not have been persuaded beyond reasonable doubt that the circumstances of the exposure were such as satisfied the element of indecency.
56. [56]
    Third, although the touching was similar as between count 1 on the one hand and counts 2 and 3 on the other, the circumstances in which the touching took place were different.  The count 1 touching took place at the appellant’s home at night and after others had retired to bed and while the complainant and the appellant were playing Call of Duty.  It was then that congratulatory action by the appellant changed from fist bump to leg touch to indecent touching.  The counts 2 and 3 touching took place in circumstances in which at least the initial touching of the complainant’s leg was more explicable: the complainant was driving so there could hardly be fist bumps or high fives and the process of instruction itself may have justified touching the leg.  The jury might well have had a reasonable doubt in the circumstances applicable to counts 2 and 3 as to whether the indecent aspect of the touching was intentional as opposed to accidental or inadvertent.
57. [57]
    Fourth, the appellant argued that it should be inferred from the acquittals in relation to counts 2 and 3 that the jury rejected the hypothesis of deliberate touching on counts 2 and 3.  The appellant said that there was no logical basis for taking a different view in relation to count 1.  I do not accept that argument.  First, there is no reason to infer that the jury positively rejected the deliberate touching hypothesis on counts 2 and 3, as opposed to their forming the view that they had a reasonable doubt as to that hypothesis.  Second, as I explained in the previous paragraph, the touching on counts 2 and 3 took place in circumstances which may have justified the jury taking a different view as to whether they were prepared to infer beyond reasonable doubt that the indecent touching was intentional.
58. [58]
    Appeal ground 1 fails.

Conclusion

59. [59]
    The appeal must be dismissed.
60. [60]
    KELLY J:  I agree with Bond JA.