R v Cleave[2023] QCA 268

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  On 15 June 2022, the appellant was convicted after a three-day trial on the count of maintaining a sexual relationship with a child.
2. [2]
   The appellant, who was an unrepresented litigant before this Court, challenges his conviction on a number of grounds, some set out in his notice of appeal, while others were articulated in his outline on the appeal.  The grounds arising from the amended notice of appeal can be summarised as below, each contending that there was a miscarriage of justice because:

   1. Ground 1 – application should have been made for a change of trial venue;
   2. Ground 2 – the appellant went to school with the child of one of the jurors;
   3. Ground 3 – the jurors saw his transportation to court by the police;
   4. Ground 4 – the jury were instructed that the appellant’s evidence was false;
   5. Ground 5 – the appellant was not allowed to fully answer in cross-examination;
   6. Ground 6 – the appellant overheard the Judge say he was lying;
   7. Ground 7 – the evidence established that the first contact with the complainant was in April 2019; and
   8. Ground 8 – the verdict was unreasonable and cannot be supported by the evidence.
3. [3]
   The reasons below reveal why I have concluded that the appeal must be dismissed.

Sentence application

4. [4]
   The appellant’s notice of appeal also listed that he applied for leave to appeal against his sentence.  Nothing was said about that application in his outline.  It is bound to fail.
5. [5]
   Section 161E of the Penalties and Sentences Act 1992 (Qld) provides:

“161E Mandatory sentence for repeat serious child sex offence

1. An offender is convicted of a repeat serious child sex offence if—

1. the offender is convicted of a serious child sex offence (the repeat offence) committed by the offender when the offender was an adult; and

2. before the offender committed the repeat offence, the offender was convicted of another serious child sex offence committed by the offender when the offender was an adult.

2. An offender who is convicted of a repeat serious child sex offence is liable to, despite any other penalty imposed by the Criminal Code, imprisonment for life, which can not be mitigated or varied under any law, or is liable to an indefinite sentence under part 10.

3. For the indefinite sentence under part 10 mentioned in subsection (2), the sentence of imprisonment for life, which can not be mitigated or varied under any law, is—

1. the nominal sentence under section 163(2); and

2. the finite sentence under section 173(1)(b).”

6. [6]
   The appellant had been convicted in August 2009 of maintaining a sexual relationship with a 14 year-old child.  Consequently, he was sentenced to life imprisonment under s 161E of the Act.
7. [7]
   Further, by reason of s 181A(2) of the Corrective Services Act 2006 (Qld) parole eligibility could only be set at 20 years.
8. [8]
   In addition to the maintaining count (count 1), the appellant pleaded guilty to a number of charges arising from the evidence to be adduced at the trial.  He was sentenced to concurrent terms of imprisonment as follows:

   1. counts 2 and 10: involving a child in making child exploitation material;^[1] each, two years;
   2. counts 3-8: indecent treatment of a child under 16;^[2] each, two and a-half years;
   3. count 11: indecent treatment of a child under 16;^[3] two years;
   4. count 9: using electronic communication to procure a child under 16;^[4] one and a-half years;
   5. count 12: using electronic communication to procure a child under 16;^[5] two years;
   6. count 13: possessing child exploitation material;^[6] six months;
   7. five counts of failing to comply with reporting obligations;^[7] one year; and
   8. a summary offence of observations or recording in breach of privacy – genital or anal region; convicted and not further punished.
9. [9]
   There is no point discussing the application for leave to appeal further.

Evidence at the trial

10. [10]
    The evidence at the trial came from several sources:

    1. the complainant, whose evidence was pre-recorded;
    2. a friend, (MSW);
    3. the investigating police officer;
    4. the appellant;
    5. the appellant’s brother (BRO); and
    6. the partner of the appellant’s brother (NKA).
11. [11]
    In addition, there were a number of admissions, particularly relating to mobile phone records from the appellant’s phone, spanning April to September 2019.^[8]  Those phone records, extending over 800 pages and 21,597 texts and images, were in evidence.^[9]

The complainant’s evidence^[10]

12. [12]
    The complainant’s evidence in chief was to this effect:

    1. she was 17 when she gave her pre-recorded evidence;^[11]
    2. she was introduced to the appellant by a friend of hers, MSW, who had suggested that she “get with” the appellant; she thought she was introduced to him “about eight months ago”, and agreed that would be around February or March 2019;
    3. at the time she met the appellant, whilst she had been living with her grandmother (NAN), she had gone to stay at MSW’s sister’s place for a couple of months; she then returned to NAN’s place; after she met the appellant, he would come around to NAN’s place to help NAN out, such as by fixing the stairs;
    4. the appellant had a gold Commodore and he would take her driving; he initially told her that he was 25 years old, but she saw his driver’s licence which indicated he was 29; the appellant said he thought she would not want to be with him if she knew his real age;
    5. she was 14 years old when she met the appellant, and he often used to drop her off at school; he knew what grade she was in at school;
    6. she told the appellant that she did not think they should be in a relationship because he was double her age and the appellant told her not to worry about it; they started off as a friendship but moved towards a relationship after about three or four months (around June 2019), and the relationship became a sexual one;
    7. she would have sex with the appellant in the back seat of his car at night; the appellant would use a condom, and she had a contraceptive rod implanted in her arm; she had that implanted before they had started a sexual relationship;
    8. they had sex “a fair few” times; namely around “more than ten times”; in oral evidence she corrected this to “Almost every day”; she wanted the relationship to be sexual as much as he did; the appellant would pick her up from NAN’s place, go for a drive and get “Macca’s” and then have sex in the back seat of his car;
    9. the appellant also digitally penetrated her vagina while in the back seat of the car;
    10. she had met friends of the appellant; the appellant told her to say that she was 19 years old; she recalled he told her, in relation to the appellant’s boss, to say she was 19 or the appellant would get in trouble; when she met BRO she did not tell him she was 19 because BRO knew her real age;
    11. they discussed the fact that she was under 16 and the appellant told her not to tell anyone;
    12. the appellant would buy her things such as food and drinks, chocolates, lollies, flowers and cigarettes; he also bought her a mobile phone;
    13. on a few occasions they had sent naked pictures to each other including pictures of her vagina^[12] and breasts and his penis, and he had sent videos of himself masturbating;
    14. she had ended the relationship by asking another woman (AKV) to tell the appellant she was breaking up with him; she had spent time with the appellant’s son; she had told MSW about the sexual relationship with the appellant, as well as another girl at school; AKV was 22 and was the appellant’s girlfriend, and they had a baby; she had moved into AKV’s house – she thought the appellant was in a relationship with AKV at the same time he was in a relationship with her;
    15. the sexual relationship started when she was just turning 15, on 31 May 2019, and the appellant had been at her 15th  birthday; she had sexual intercourse with the appellant from before her 15th birthday and it occurred almost every day, mostly in his car; and
    16. she also identified a significant quantity of text messages as having been between herself and the appellant.
13. [13]
    In cross-examination the following relevant points emerged:

    1. when she first met the appellant she was with other people and was drinking alcohol; they were around the same age as her; she smoked cigarettes, and the appellant would buy cigarettes for her;
    2. she did not like staying at NAN’s and would often stay at other people’s houses;
    3. she would often skip school to spend time with the appellant; on the days she skipped school she would not be wearing her school uniform;
    4. she denied:
       1. having told the appellant she was in grade 11;
       2. asking the appellant to be in a fake relationship with her because she was being bothered at school by schoolmates;
       3. having asked him to be a pretend couple;
       4. that the texting between them was for the purpose of showing people at school;
       5. there were no physical sexual acts between herself and the appellant; and
       6. they were just playing out some type of fantasy through text messages;
    5. NAN took her to have the contraceptive rod inserted in her arm;
    6. NAN had asked her on a number of occasions whether she was having sex with the appellant and she told her they were not; she said that was because the appellant had told her to keep it a secret and not tell anyone;
    7. the appellant would buy her things, including credit for her phone and alcohol; the appellant had never bought her lingerie or underwear but he had tried to give her some from his ex-wife;
    8. she was with the appellant in Currimundi on one occasion when the police stopped them and asked her name and age; the appellant had told her to lie and tell the police they did not know each other and that he had just picked her up whilst she was walking; she disagreed that she lied about her age to the police but agreed she did lie about knowing the appellant;
    9. she had told the appellant’s co-workers that she was 19, and told his friends that she was 16 up to 19; she disagreed that was her idea as opposed to the appellant’s;
    10. she agreed (“most of the time”) when she referred to being underage in text messages the appellant would call her or go and visit her but disagreed with the suggestion the appellant would question why she was saying she was underage, as he knew her age; the appellant had told her to lie to others about her age;
    11. she knew someone named LAK but did not know LAK had been texting or sexting the appellant; she knew a girl named STH and that the appellant was communicating with her; the appellant told her he had stopped talking with LAK and STH;
    12. she disagreed with the suggestion that she was trying to get the appellant in trouble because she was jealous;
    13. she disagreed with the propositions that;
        1. she had told BRO that she was 19 or 20;
        2. she had told BRO she wanted to make the appellant suffer;
        3. she had told NKA that she made a statement against the appellant because if she did not, she would “spend 20 or 25 years in juvie”;
        4. telling NKA that she wanted the appellant to suffer, she wanted revenge on the appellant or that she wanted compensation or money from the case;
        5. that she never had sex in the car; and
    14. she denied telling AKV that police had taken her to the cells to pressure her into making a statement against the appellant, or that she had been scared by police because they had said something to her about sending child porn.
14. [14]
    In re-examination the complainant said she had not told police the full extent of sexual contact with the appellant because she was scared, she had been threatened, BRO and NKA had been coming past her house regularly and noted they were sitting outside court.
15. [15]
    In the second pre-recording of evidence, in cross-examination, she agreed that she had the contraceptive rod inserted in her arm on 23 July 2019.  She agreed that she told the doctor she was not sexually active.  She disagreed with the proposition that the appellant had not told her to lie to the doctor.  She stated the appellant had told her not to tell anyone.

Evidence of MSW

16. [16]
    MSW’s evidence was also pre-recorded.^[13]  She said:

    1. the appellant was “dating” the complainant;
    2. the complainant had told her she loved the appellant and told her stories;
    3. the complainant met the appellant at MSW’s sister’s place, and the complainant asked who the appellant was, and she told him his first name;
    4. the appellant had asked how old the complainant was as he was interested in dating her; MSW told the appellant the complainant was 15;
    5. the complainant had only known the appellant for three days when they “got together” and the complainant was on the phone to him a lot after that;
    6. the complainant told her that after about two months she had sex with the appellant; the complainant initially tried to deny it, but eventually told her she was having sex;
    7. the complainant and the appellant would kiss and hug and “stuff”, and they were a “clingy couple”;
    8. MSW had been with the complainant on occasion meeting friends, co-workers and family of the appellant;
    9. the appellant had told her he was 25, and that was around the time the complainant started dating him; MSW had known the appellant since she was around five years old, as her sister used to hang around the appellant’s brother;
    10. MSW had met the complainant and they became friends; the complainant was 15, and had turned 15 “a couple of months ago”;^[14] the complainant and the appellant were dating when the complainant was 14; the appellant would buy the complainant things such as a birthday present and anniversary presents;
    11. MSW was in grade nine and shared one class with the complainant who was also in grade nine; she had been friends with the complainant for seven months; she was friends with the complainant about four or five days before the complainant met the appellant; the appellant would often pick up MSW and the complainant but would park away from the house as people had noticed him picking them up;
    12. when meeting friends of the appellant, he told MSW and the complainant to say they were 19; the appellant would occasionally text her and it would usually be about the complainant; he “was always” telling MSW that he loved the complainant, how much he missed the complainant and that they had a lot of arguments and would break up and get back together;
    13. on one occasion when she was at the complainant’s house, she walked in on the complainant in the bathroom taking photos of herself, wearing a G-string, to send to the appellant;
    14. the partner of MSW’s sister kept asking whether the complainant was having sex with the appellant, and the complainant continually denied it; the complainant finally told him “the truth” and the partner became angry with her as he did not want “that” happening in his house;
    15. the complainant would talk about how much she loved the appellant and the time they spent together; the complainant told MSW: she told MSW that they had sex “three times”, that they did not use condoms all the time because the complainant wanted to get pregnant, and the complainant was going to move in with the appellant when he had a house of his own; MSW saw the complainant and the appellant kissing in public on occasions, but not holding hands; and
    16. the appellant would buy things for the complainant regularly, and he used to buy cigarettes a lot; the complainant would ask the appellant for money, or for him to buy cigarettes whenever she was out; MSW had called the complainant a gold-digger because of this; the complainant would also ask the appellant to take her to dinner and go out on dates.
17. [17]
    In MSW’s cross-examination the following relevant points emerged:

    1. she was with the complainant near a McDonalds when the appellant came to pick them up, and the complainant was drinking;
    2. she had not seen the appellant buy things for the complainant, that was something the complainant had told her;
    3. she and the complainant would tell the appellant’s friends that they were 19 and that was something decided between the two of them; there was one occasion where the appellant told them to say they were 19;
    4. she knew a girl named STH and that she was aware STH was talking with the appellant; the complainant was angry about that and jealous; and
    5. MSW had told police the complainant had said she had sex with the appellant three times, and that she had been told by the complainant after her statement was taken that they had sex more frequently.
18. [18]
    In re-examination she stated she saw the complainant and the appellant kissing, him grabbing “her arse” and holding her hand all in public.

Police evidence

19. [19]
    The investigating officer gave evidence as to the search at the appellant’s caravan, seizure of his mobile phone and forensic examination of it.  She also took the complainant’s statement after the complainant was initially reluctant to do so.
20. [20]
    In cross-examination the officer agreed that the complainant was placed under arrest at NAN’s and that AKV was present at the time.  The officer did not tell the complainant she was being investigated for sending intimate pictures to the appellant.  She stated the complainant was only at the cells for a short period of time before she approached her and said she would like to speak with her.  She agreed  that after the complainant gave her statement she was free to leave the police station.

The appellant’s evidence

21. [21]
    The appellant gave evidence in his own defence.  In evidence in chief he said:

    1. MSW had called him to pick her up from the McDonalds carpark and the complainant (and another girl) was with her; this was the first occasion he met the complainant; all three were drinking; he dropped them off at another location; some time after that he  got a call from MSW to come and pick them up again; they all went back to his friend’s house; the girls slept on mattresses and he and the friend slept on couches; he did not really talk to the complainant on that occasion;
    2. he saw the complainant at the friend’s place; he exchanged phone numbers with the complainant about three or four days, or a week, after they first met; a couple of weeks after they first met, the complainant asked him to come to NAN’s house to fix an issue with NAN’s car;
    3. the complainant did not discuss that she was at school until months after they had met when she asked him one day to drop her at school; when he did she would always be in normal clothes; he met an ex-boyfriend of the complainant and she said she was the same age as him, and he was in year 11 going on year 12;
    4. there were occasions when the complainant sent texts saying she was 14 or turning 15 and that it confused him; he was not doing anything wrong, that they were not having “sex and stuff”, but it scared him and he would call her; the complainant said she was 16 on more than one occasion;
    5. he said the complainant came to his work on multiple occasions to spend the day with him and that she had met his boss; he also identified a number of other friends and family that the complainant had met;
    6. she told BRO that she was 19; the appellant “freaked out” about that and asked the complainant why she kept saying different things about her age; she did not give a definite explanation but would laugh it off and say it was a joke; he had never had a conversation with MSW about the complainant’s age; he did not believe he had ever had a conversation with NAN about the complainant’s age, but it was possible;
    7. he helped out around NAN’s house to repair things, take recycling and drive NAN and the complainant around if needed;
    8. the complainant asked him almost on a daily basis to buy things for her and he would spend “$300 a week, $350 a fortnight” on things for her; the complainant drank alcohol and smoked cigarettes;
    9. he had been through the text messages between himself and the complainant; the complainant was telling people he was her “sugar daddy” because he was always buying her things;
    10. the complainant told him she was being harassed on social media and she wanted to have a fake relationship with him so people would stop harassing her; they wanted to make the messaging as real as possible so she could show screenshots to the people harassing her;
    11. they had exchanged pictures and videos, and he understood at the time she was 16 and in grade 11; he had told the complainant he was 28 and she had seen his licence a week after they started talking;
    12. he did not have any physical sexual interaction with the complainant; and
    13. he became aware that the complainant had a contraceptive rod implanted in her arm after she had been to the doctor; his relationship with the complainant did not go beyond the text messaging; he never saw the complainant in her school uniform and when picking her up or dropping her off for school, she would be wearing normal clothing; he had never asked the complainant to lie for him and he behaved toward her on a general friend basis when with MSW; when she was with the complainant, MSW told workmates and friends of his she was 19.
22. [22]
    In cross-examination the following relevant points emerged:

    1. the appellant accepted that the text messages portrayed a relationship including each telling the other that they loved them, but that was because it was a fake relationship to convince others; when suggested that does not require messages for six months, he said the complainant told her a lot of people were messaging her, although she never showed him messages;
    2. there was never an occasion where the complainant specifically asked him to send more fake messages; the text messages included some arguments between the two and discussion about breaking up; that would not help fake a relationship, but he said that when that would happen someone would contact the complainant and they would go back to a fake relationship;
    3. he denied kissing the complainant in public or holding her hand or grabbing her bottom; he agreed MSW was with him and the complainant “quite commonly”;
    4. in relation to the exchange of pictures, he agreed he wanted to see the complainant naked but said he did not have a sexual interest in her;
    5. he agreed sending her pictures of his penis and a video of him masturbating while saying her name; the complainant had asked him to do that; when asked if it was a setup to stop harassment, he stated no, he did not know what it was, but she asked for it;
    6. when referred to a text message sent by the complainant where she said she lately only saw him for a short time and all they did was “root” and then he would leave, and where he replied “Okay, and I’m sorry”, he said he did not reject the statement they were rooting because he did not know what to say; he denied the suggestion it was because they were having sex;
    7. he was referred to another message where he told the complainant he could “cum over” and said he believed the spelling c-u-m referred to ejaculation; he was referred to other occasions where he had used that spelling and accepted the reference to ejaculation, but then said in context he was not sure;
    8. he was referred to a message about going in her garage and rejected the proposition that referred to his penis in the complainant’s vagina;
    9. he was referred to a message where he asked the complainant if she wanted him to have a shower for “sausage to mouth” and accepted that was a reference to his penis in the complainant’s mouth; the following message was the complainant saying “no” and he stated that obviously the sex act never occurred because she said no;
    10. he was referred to a message where the complainant said she was pregnant and indicated she thought he said he was good at pulling out; he said he was not concerned about the message because by that stage he knew she had the bar in her arm;
    11. he denied the complainant had told him she was 14 when they first met and denied that MSW had told him the complainant was under 16; he never had a discussion with MSW about the complainant’s age; he denied attending the complainant’s 15th birthday;
    12. he was referred back to his statement that he would be scared when the complainant said she was under 16 and it was suggested he would have no reason to be scared if he had no sexual relationship with her; he said that was because you can get in trouble just hanging around with someone if someone says “That happened” when it may not have; he said it was also because he had just recently ended his marriage and had a newborn on the way and he was scared of losing that by someone making up a story;
    13. he accepted the complainant sent a message on 27 April 2019 where she asked whether BRO had seen them in bed together; she texted that she was worried BRO would tell someone; the appellant had texted to say he did not think he would, and she replied by text she did not want anyone getting in trouble; he said they had in fact slept in the same bed but he was in a relationship with someone else at the time; he denied the messages were because the complainant was underage;
    14. he was referred to a text message from the same date where the complainant texted that someone had seen them kissing, but she had told them it was MSW and not her, so they would not ask questions; he had replied by text “Okay then. Cool”; he stated it suggested they were seen kissing but the complainant turned it around; it was put to him that he did kiss the complainant and he replied no because she said in the message it was not her; his Honour then repeated it was being put to him he did kiss the complainant and he replied no;
    15. he was referred to a text from the complainant asking him if he had dated or slept with an underage girl before her; he said that was because they had slept in the same bed together; he denied it was a reference to having sex;
    16. he was referred to messages regarding matching jumpers where the complainant had texted they should get them when she was 16, and he had texted “yes”; he said did not respond to the reference to age because he was sick of her telling him different ages “all the time”; and
    17. he was referred to messages where the complainant had texted that her Nan wanted her to walk away from the relationship because she was only 15 and it was too much pressure; he said there was nothing to walk away from.

Evidence from BRO (the appellant’s brother)

23. [23]
    BRO gave evidence that when the appellant first introduced the complainant, she told him she was 19 going on 20.  He had a conversation with the complainant after she had complained to police and she said she wanted to see the appellant suffer, to get compensation from him and make him hurt.  He also gave evidence of attending the complainant’s 16th birthday.
24. [24]
    In cross-examination, he said the 16th birthday was two and a-half to three years ago, but accepted it was 2019.  NAN told him it was her 16th birthday and he did not know it was a party before he went to the house that day.  He agreed that the complainant knew that he was the appellant’s brother and they had a good relationship.  He maintained the complainant had said the statements he referred to in evidence.

Evidence from NKA (the partner of BRO)

25. [25]
    NKA gave evidence that she is the partner of BRO.  She stated the complainant came on a boat trip with her and BRO in September/October 2019.  The complainant told her she had been put in handcuffs and taken to the police station.  The complainant told her the police showed her the watch-house.  She recalled the complainant saying she wanted the appellant to suffer for everything he had done and she would do anything to make it happen.  The complainant also said she wanted to gain compensation out of it.
26. [26]
    In cross-examination she agreed her loyalty was to the appellant’s family and maintained her account of the complainant’s statements.  She clarified that the complainant did not say anything about lying about what had occurred or what she said to police.

Ground 1 – change of trial venue

27. [27]
    Though this ground was articulated in the appellant’s original and amended notices of appeal:

“… I originally asked my legal team to transfer my case/trial to a different Court Circuit other than Maryborough. Which they didn’t support.”

28. [28]
    Nothing more was said about this ground in written or oral submissions.
29. [29]
    As is evident from the note above, the appellant’s own lawyers did not support an application to move the trial.  The appellant has not identified any basis on which such an application could have been made, nor a chance that it would have been successful, nor has he identified any unfairness in the trial proceeding where it did.
30. [30]
    This ground fails.

Ground 2 – went to school with juror’s child

31. [31]
    This ground is also in the notices of appeal:

“I also notified them during the Jury selection that I went to school with one of the Juror’s children but this was dismissed as of no importance.”

32. [32]
    The reference to “them” is evidently the appellant’s trial lawyers.
33. [33]
    The appellant has provided nothing by which one might assess this ground.  In any event, the point was raised with his lawyers who evidently did not consider anything needed to be done.  The appellant has not identified any prejudice or unfairness that could have followed from this bare assertion.
34. [34]
    Further, at the commencement of the trial, the trial Judge gave standard directions to the jury panel regarding the need for impartiality.  There is no reason to think that the jury panel did not follow the directions.  Once empanelled, further directions were given to the same effect.  Again there is no reason to doubt those directions were followed.
35. [35]
    This ground fails.

Ground 3 – jurors saw his transportation to court by police

36. [36]
    This ground is articulated thus in the notices of appeal:

“While I was being transported to and from Court I saw several different Jury Members at multiple times and only one Juror was ask (sic) if she saw me. I believe there maybe footage on the courts CCTV and potentially in media coverage.”

37. [37]
    This issue was raised on the morning of the second day of trial:^[15]

“MS HURLEY: Thank you, your Honour. I ask that the matter be mentioned in the absence of the jury. When I went out to the cell area, which is around to my left to the back of the building, and when my client arrived both handcuffed and with the police officers in the police vehicle, a number of the jury members were congregated in the direct sight of where he was led in and upstairs to the courthouse. Given the time, I haven’t been able to get firm instructions as to whether – given that was we were attempting to avoid the whole trial - - -”.

38. [38]
    The learned trial Judge referred to the fact that in the pre-recorded evidence there had been references to the appellant being arrested and therefore the jury knew he had been arrested.^[16]  His Honour requested the appellant’s counsel identify the prejudice that might be said to be suffered, and pointed out that the practical consequence of success on an application to discharge would be that the trial would simply start the next day with a different panel.^[17]  Counsel for the appellant sought an adjournment to obtain instructions.
39. [39]
    When the trial resumed an application was made for “the discharge of either individual or the full jury”.^[18]  His Honour asked for the instructions given as the basis for the application.  The answer for the day before was:^[19]

“MS HURLEY: … your Honour, my instructions are in addition to today that yesterday there was one juror, which is not so much of a concern, my client believes the juror’s last name may be …. She was standing outside when he went downstairs … facing when the van came in; he was in prison greens and … my client – was of the view that that particular juror yesterday sited him in prison greens. There was nothing obstructing - - -

HIS HONOUR: All right. Was this before the jury was empanelled? Come on.

MS HURLEY: After, I’m told.

HIS HONOUR: After the jury was empanelled.

MS HURLEY: And that was after court, I’m told.

HIS HONOUR: After court.

MS HURLEY: So that was just one juror, so it’s not as much of a concern as this morning. Given that we have a reserve juror, I put that in that context.”

40. [40]
    Then, turning to the second day of the trial, it was explained that the appellant’s instruction were:^[20]

“MS HURLEY: Thank you. This morning, I’m instructed that there was approximately five jury members who were congregated at the edge of the what’s referred to as the outside back area of the court on the boundary of where the park is where the train shed-type area is.

…

MS HURLEY: I’m instructed that at least some of the five or so jury members were facing his direction. He was wearing cuffs and he saw that some of the group turned as he got out of the QPS vehicle. My client with respect to what he says was what he saw as to their – one or more facial reaction, all he could describe it was that their brows moved or changed, so for whatever that’s worth.”

41. [41]
    The learned trial Judge determined the matter should be subject to a voir dire as to the evidentiary basis for the application to dismiss the jury.  The appellant gave evidence as to what occurred on the two days in question.  As to the day before, the appellant identified only one juror, whom I will call X.  As to the second day, he said there were four to five jurors.
42. [42]
    The appellant gave evidence regarding X having seen him (or in a position to see him and facing him) whilst in his prison clothing on the previous day.  He gave evidence regarding his arrival that morning in his court clothes and in handcuffs.
43. [43]
    During the course of the hearing X was asked whether she had seen the appellant on the previous day.  She stated she did not.  Both the Crown and Counsel for the appellant placed on record that the juror’s answer seemed spontaneous and Counsel for the appellant conceded that X was a “completely credible witness”.^[21]
44. [44]
    At that stage the learned trial judge dismissed the application in so far as it related to X.^[22]
45. [45]
    The Crown submitted that his Honour should first hear from the police officer involved in the transportation of the appellant, because if the police officer’s evidence was accepted there may be no need to question the jury.^[23]
46. [46]
    Evidence was also heard from one of the police officers involved in transporting the appellant to court on the second day.  That was to the effect that when he got out of the car that morning, after the car entered the court complex, the roller door was largely down.  At that time the appellant was still in the car.  By the time the appellant was out of the car the roller door was shut.^[24]
47. [47]
    Following that evidence the trial Judge ruled that he accepted the evidence of the officer to that of the appellant and dismissed the application.^[25]  There was no need to question the jury as the factual basis for the application was not established.
48. [48]
    There is no error identified in the process of the hearing or the conclusions of the learned trial Judge.  There was no attempt to seek footage from CCTV or the media, nor any suggestion that such footage existed or that it might reveal anything relevant.
49. [49]
    This ground fails.

Ground 4 – jury instructed that the appellant’s evidence was false

50. [50]
    This ground was articulated thus in the notices of appeal:

“During my Trial there were multiple times the Jury was instructed that evidence I gave was false even when electronic messages could collaborate (sic) what I had said.”

51. [51]
    A review of the trial transcript and the directions from the learned trial judge reveals that there was no occasion when the jury were instructed that the appellant’s evidence was false.  The jury were given appropriate directions regarding the assessment of the evidence, including that of the appellant.  They were told that they could accept or reject evidence, and it was a matter for them to judge whether a witness was telling the truth or not.  But nowhere were they told that the appellant’s evidence was false.
52. [52]
    This ground fails.

Ground 5 – appellant not allowed to fully answer in cross-examination

53. [53]
    This ground was articulated thus in the notices of appeal:

“During my trial … I was also not allow (sic) multiple times to provide full explanations to questions that I was asked by the Prosecution.”

54. [54]
    The appellant did not identify any such instance beyond the assertion above.
55. [55]
    I have read the transcript of the appellant’s cross-examination.  I can identify no occasion where it can legitimately be said that the appellant was prevented from answering as fully as he desired, or was somehow unfairly compromised.  There was nothing unfair or improper in the conduct of the prosecutor in cross-examination of the appellant.
56. [56]
    This ground fails.

Ground 6 – overheard Judge say the appellant was lying

57. [57]
    This ground was articulated thus in the notices of appeal:

“At the end of one of the sessions while the Judge and court transcriber were leaving and I overheard the Judge comment that I was doing nothing but lying. I am unaware if the jury overheard this comment from the Judge.”

58. [58]
    Nothing further has been advanced by the appellant in support of this assertion.  The transcript records no such comment.  The only direct reference to the appellant by the trial Judge was in the context of the voir dire where he found the appellant’s evidence was not credible.^[26]  That lends no support to the present assertion.
59. [59]
    This ground fails.

Ground 7 – evidence could prove first contact with complainant was April 2019

60. [60]
    This ground was articulated thus in the notices of appeal:

“There is also evidence to prove that I didn’t have contact with the complainant until the start of April 2019.”

61. [61]
    It is difficult to see how this assertion is relevant to the issues in the trial unless it is to challenge the start point of the maintaining period.  The indictment charged that the maintaining was between 1 February 2019 and 25 September 2019.  Establishing that it did not start until April 2019 would not assist the appellant as the dates in the indictment are not part of the elements of the offence.
62. [62]
    The appellant gave evidence at his trial and did not identify specifically when he first met the complainant.  However, he did accept that after meeting her he had extensive, almost daily, contact with her within the period covered by the indictment.
63. [63]
    This ground fails.

Ground 8 – unreasonable verdicts

64. [64]
    The legal principles applicable where the ground in that the verdict was unreasonable are well known. They were recently restated in Dansie v The Queen.^[27]  Dansie reaffirmed the approach set out in M v The Queen:^[28]
65. [65]
    The Court reaffirmed the relevant task as being that laid down in M v The Queen:^[29]

“[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.’”

66. [66]
    The High Court also said:^[30]

“[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’.”

67. [67]
    In Pell v The Queen^[31] 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.”

68. [68]
    In R v Miller^[32] 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.”

69. [69]
    The 21,597 text messages were before the jury.  So too were the images that were sent.  It is not feasible to deal with all of them, however there are some that the jury could have accepted as showing that the appellant and the complainant were in a sexual relationship prior to her turning 16, and that he was well aware of her age and birthday.
70. [70]
    The texts commence on 21 April 2019 when the complainant was aged 14 years and 11 months.^[33]  The texts in evidence ceased on 24 September 2019 when the complainant was 15 years and 4 months old.
71. [71]
    Throughout the period the appellant sent sexual images of himself to the complainant, and sought that she do the same for him, which she did.  The texts reveal continuous themes, including expressions of undying love for each other, their desire to marry and have children, and resentment at those who questioned their relationship because of her age and the age differential.
72. [72]
    Between 21 April and 11 September texts were exchanged that revealed:

    1. the complainant and the appellant sleeping together and having sex;^[34]
    2. sexualised conversations and exchange of sexual images;^[35]
    3. the appellant knew the complainant was a schoolgirl in year 9;^[36]
    4. the complainant asked the appellant whether his brother had seen them in bed together;^[37] the complainant was then 14 years and 11 months old;
    5. the complainant asking the appellant whether he had slept with an under-age girl besides herself;^[38]
    6. the complainant telling the appellant “I’m 15 next month”;^[39]
    7. the complainant revealing to the appellant that she had told her doctor she was sexually active;^[40]
    8. the appellant knew her date of birth and knew at all times that she was under 16;^[41]
73. [73]
    In my view, the jury could easily reject the appellant’s proposition that the texts were to set up a fake relationship that the complainant could use to defend herself against some other persons at school.  Plainly they did reject that.
74. [74]
    Once that was rejected, the jury could accept the texts as genuine (there was no issue that they were sent between the complainant and the appellant) and truthful at least in so far as they contained admissions against interest.
75. [75]
    In my view, as a review of the content of the texts referred to above shows, the texts clearly established, and the jury could accept, several things:

    1. the appellant knew that the complainant was under 16 at all times; he knew her date of birth (31 May 2004); on 1 May the complainant told him “My birthday is in 29 days”; on 21 May she told him her birthday was in 10 days and he acknowledged that; on 31 May the appellant sent birthday wishes to the complainant, “I just wanna say happy birthday and hope u have a good day today”;
    2. further, he knew she was in year 9 at school (the complainant told him so in text and he acknowledged that fact); they discussed the question of her being under 16 a number of times (in May the complainant told him NAN said “you can’t touch me until I’m 16”);
    3. her age and the age disparity between them was a topic of frequent texts, particularly in the context of the disapproval of relatives and friends;
    4. the relationship was a sexual one; the complainant and the appellant referred many time to the fact that they slept together when they could and that they had sex; the complainant objected several times that they did not spend time together often enough and when they did do so, all they did was “root” or “fuck”; she was upset because NAN knew “we fuck”; the appellant never denied that in the texts, indeed he at one time said “so we fucked today”;
    5. the nature of the texts showed he was grooming her; the texts are full of  repeated protestations of love, praising her looks, and the repeated pronouncement of his desire to marry and have children with her; and
    6. the appellant repeatedly sought that the complainant send him naked and otherwise sexual photos of herself, and he responded in kind, particularly photos of his penis and even a video of him masturbating while calling her name.
76. [76]
    The texts made the Crown case an overwhelming one.  They corroborated the complainant’s evidence in meticulous detail.
77. [77]
    Further, there was no objective reason for the jury to reject the evidence of MSW.  Not only did she say that the complainant told her she was having sex, but her evidence directly supported that the appellant knew the complainant was 15, because MSW told him so at the outset.
78. [78]
    In my view, it cannot be demonstrated that the verdicts are unreasonable or not supported by the evidence.  No significant inconsistencies or weaknesses have been identified in the evidence of the complainant.  The jury were entitled to accept the complainant’s evidence, corroborated as it was by the texts, and reject the attacks based on revenge.  One cannot reach the position that it has been demonstrated that any weaknesses reduced the probative value of the complainant’s evidence in such a way that this 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.
79. [79]
    This ground fails.

Conclusion

80. [80]
    All grounds of appeal have failed.  I would order:

1. Appeal against conviction is dismissed.
2. Application for leave to appeal against sentence is refused.

81. [81]
    DALTON JA:  I agree with the order proposed by Morrison JA and with his reasons.
82. [82]
    BODDICE JA:  I agree with Morrison JA.