R v TAY[2023] QCA 5

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Morrison JA.

2. [2]
   MORRISON JA:  The appellant was convicted on 10 counts of sexual offences against two complainants.^[1]  The offences were:

   1. (a)
      Count 1: maintaining an unlawful sexual relationship with COM between 12 March 1994 and 13 March 2002, COM being a child under 12 years old, and under his care, and in the course of that relationship, he indecently dealt with COM;
   2. (b)
      Count 2: maintaining an unlawful sexual relationship with SIS between 31 December 1996 and 30 April 2003, SIS being a child under 16 years old, and in the course of that relationship, he raped SIS;
   3. (c)
      Count 3: on a date unknown between 31 December 1996 and 16 January 1999, raping SIS;
   4. (d)
      Count 4: on a date unknown between 12 March 1997 and 1 January 1999, indecently dealing with COM, then a child under 16 and under his care;
   5. (e)
      Count 5: permitting himself to be indecently dealt with by COM, then a child under 12 years;
   6. (f)
      Count 7: on a date unknown between 19 April 1998 and 16 January 1999, raping SIS;
   7. (g)
      Count 8: on a date unknown between 30 November 1998 and 1 January 1999, indecently dealing with COM, then a child under 16 and under his care;
   8. (h)
      Count 9: on a date unknown between 31 December 1999 and 1 January 2002, raping SIS;
   9. (i)
      Count 10: on a date unknown between 12 March 2000 and 14 March 2001, indecently dealing with COM, then a child under 16 and under his care; and
   10. (j)
       Count 11: on a date unknown between 19 April 2000 and 20 April 2002, raping SIS.
3. [3]
   To summarize the counts in a more easily comprehensible form,^[2] they were:

   1. (a)
      in respect of COM, one count of maintaining, three counts of indecent dealing, and one count of permitting indecent dealing; and
   2. (b)
      in respect of SIS, one count of maintaining and four counts of rape.
4. [4]
   The appellant challenges his convictions on two grounds.  Ground 1, for which leave was given at the hearing of the appeal, is that there was a miscarriage of justice because the appellant was denied a fair trial by reason of the Crown’s failure to disclose the victim impact statement of SIS before her evidence.  Ground 2 is that the verdicts were unreasonable and not supported by the evidence.

Disclosure of the victim impact statement

5. [5]
   The trial ran over seven days from 22 September 2021 to 28 September 2021.  The victim impact statement^[3]was dated 16 September and was disclosed after closing addresses and during the summing up.
6. [6]
   It was suggested that police had the statement on 23 September, after SIS had given evidence.  The Prosecutor received it on 27 September and provided it to defence Counsel that day.
7. [7]
   Defence Counsel applied for a mistrial and discharge of the jury^[4] on the basis that the statement bolstered an argument that there was collusion, an issue central to the defence case.  Reliance was placed on R v HAU.^[5]  The application was refused.^[6]

Contentions on the appeal

8. [8]
   Mr O'Brien of Counsel, appearing pro bono with Ms MacNicol of Counsel for the appellant, focussed their contentions on four aspects of the statement by SIS:

   1. (a)
      she did not know the appellant’s conduct was wrong until she was in High School;
   2. (b)
      the appellant would not let her return to “where she felt safe”;
   3. (c)
      from the age of 14 years she abused herself and took drugs; and
   4. (d)
      she resided with her sister (COM) for seven months in 2012/2013.
9. [9]
   Ground 2 requires that the Court conduct a review of all the evidence at trial.  That is not necessary for Ground 1 as that relates to what is revealed in the statement by SIS, and only that aspect in paragraph [8](d) above relates to a matter that could potentially affect questions addressed to COM.

Review of evidence

10. [10]
    Oral evidence at the trial came from COM and SIS, their brother, their biological father and his ex-partner.  Formal admissions were also made.

COM’s evidence

11. [11]
    COM gave evidence that the appellant was her stepfather and also the father of her three children, born in 2004, 2006 and 2011.  She and the appellant commenced a romantic relationship when she was 16 and she gave birth to her first child when she was 18.  That relationship ended in 2012.^[7]  COM’s mother was married to the appellant, and died on 1 January 1999.  The three siblings (COM, SIS and their brother) moved in with COM’s mother to live at the appellant’s farm when COM was about eight or nine years old.  At the farm COM and SIS shared a bedroom until COM was about 13.^[8]
12. [12]
    COM said the sexual offending against her commenced when she was 10 or 11.^[9]  The indecent dealing counts^[10] involved the appellant touching COM on the breasts, putting her hand on his penis, using her hand to masturbate him to ejaculation, and rubbing her vagina against his penis to the point of ejaculation.
13. [13]
    Her first recall of a specific event involved the appellant touching her breasts whilst on the appellant’s bed.  He then put her hand on his penis and moved it up and down until he eventually ejaculated.^[11]  The touching of her breasts was over the top of clothing^[12] but the touching of his penis was inside the appellant’s pants.^[13]
14. [14]
    The second occasion she recalled was when she was 10 to 12 years old.  They were all lying in their parents’ bed, with COM at the edge on one side, then the appellant, then her brother, followed by her mother and SIS on the far side.  The appellant put COM’s hand “into his pants, through the buttonholes … onto his penis which was soft”.^[14]  COM moved her hand up and down until his penis went hard. She did that for a while and then the appellant told them to go to bed.^[15]  He did not ejaculate on that occasion.
15. [15]
    The third occasion she recalled was an incident at the dam on the property.^[16]  It was during the Christmas holidays and the weather was hot, and all of the children as well as the appellant were in the dam.  The appellant had his hand around COM’s body, holding her towards him.  Her legs were wrapped around his waist and “he was moving me up and down and I could feel his penis getting hard”.  At the time her mother was back at the house.
16. [16]
    The fourth occasion she could recall was when they had some time off while doing chipping.^[17]  COM and the appellant were lying on a mattress in the lounge room watching television.  He started to touch her breasts and had his hands down her shorts.  COM said that she did not want to do anymore chipping.  She said at that stage they had an established routine that “if I gave him a rub, that I could get out of doing the chipping or whatever it was I wanted”.  She explained that “having a rub” involved “getting naked and rubbing my vagina on his penis until he ejaculated”.  The rubbing was skin on skin. On this occasion COM said they both got undressed and she climbed on top of the appellant, and “rubbed my vagina along his penis until he ejaculated”.  She said she saw “white stuff coming out of his penis”.
17. [17]
    After her mother died her brother and SIS went to live with their biological father, and COM stayed with the appellant.  She would sleep in his bed every night and, she said, sometimes things would happen.^[18]  The appellant told her he liked to sleep naked, so COM also slept naked.  He would touch her, and they would have what she described as “a rub”.  That happened regularly, whenever he wanted.^[19]
18. [18]
    The fifth event recalled by COM was one of many.^[20]  On this occasion he was working outside at the farm at a time when she was aged between 10 and 12.  The appellant pushed her dress and underwear aside and “put his fingers inside of me”, which she clarified as meaning “inside of my vagina”.^[21]  She could not tell how long that went on for but it felt “weird and it hurt”.  After he finished doing that they just went back to work.
19. [19]
    COM said that a few times before her mother died and when she was aged between 10 and 12, the appellant would say “this is our secret”, and “keep it between us”.^[22]
20. [20]
    In cross-examination COM agreed she was the appellant’s de-facto from about the age of 18, until 2012 when she left him.^[23]  The effect of COM’s evidence was that the appellant would try to keep her on the farm when the others went into town.^[24]  At the time her mother died and her siblings moved back with their biological father, COM admitted that she wanted to live with the appellant because he was a better father than her biological father.^[25]
21. [21]
    COM could vaguely recall speaking to police in March 1999.  She agreed she had never observed any sexual interaction between SIS and the appellant and characterised the relationship between herself and SIS as not particularly close.^[26]
22. [22]
    In cross-examination COM was asked about what she had told police in March 1999.  That included questions about how often COM spoke to SIS, which she estimated as “About once every week”.^[27]
23. [23]
    She was also asked about an investigation, apparently by Child Safety Officers, into what SIS had told police about what was occurring to herself as well as to COM.^[28]  Part of what was put to COM was that she told the Child Safety investigation that there was no abuse between herself and the appellant.^[29]  COM did not agree.
24. [24]
    Other matters arising from the investigation which were put to COM and with which she agreed included that: (i) SIS was reluctant to return to the farm, (ii) that she regarded the appellant as “more of a father to me than my real dad”, (iii) her father’s unreliability to fulfill arrangements was part of the reason she felt that way, and (iv) she denied allegations that the appellant had been sexually abusing her.^[30]
25. [25]
    In terms of disclosure of the offending, COM said she was too scared to speak out and had been groomed from a young age and, further, that when speaking to the Child Safety Department in 1999, she did not know that what was going on was wrong.^[31]  It was put to her that, given that the police were involved and she was 13, she must have known it was wrong. COM responded, “I suppose so”.
26. [26]
    She was cross-examined about whether, at age 13 in 1999, she appreciated that what the appellant was doing was wrong.  She answered:

“I had beginning understandings of sex, but not the whole – being that he’s an older man and he was in a position of power and I was a child … Because he groomed me from a child”.^[32]

She continued:^[33]

“I was a child.  He had me believing, as a child, that he was there, that he loved us; that he was there to protect us.  He did what he wanted whenever he wanted.

And even saying with that context – and not believing it was wrong – you didn’t tell the police about this incident? ---No.  Because I was too scared.  And he had me believing that what was going on between us was completely natural and normal.”

27. [27]
    Then, turning to what was happening between SIS and the appellant, COM explained that she “wasn’t told specifics”, and the appellant “had me believing that he would never do anything like that to her: that it was just me”.^[34]
28. [28]
    COM was also cross-examined about her statement to police in March 1999 where she was questioned about her understanding of “what good touches are and bad touches are”.  In the course of that interview^[35] COM denied that anybody had touched her on the private parts of her body.  Then, when asked who she would tell if someone did that, she answered that she would tell the appellant.^[36]
29. [29]
    In cross-examination COM was asked about the incident involving her putting her hands into the flies of the appellant’s boxer shorts.  She denied the proposition that she did that voluntarily when she was a young girl, and the appellant told her to stop.^[37]  She recalled that the boxer short flies were sewn up, but at a later date.^[38]
30. [30]
    Upon separation from the appellant, COM lived in Brisbane for one to two years, before moving to a house purchased by the appellant and put in the joint names of the appellant and COM.^[39]  COM also agreed that she had some discussions with the appellant about putting the house into joint names and he had refused.^[40]COM also agreed that when she separated from the appellant she had access to an investment account with about $60,000 in it and used that money to support herself.^[41]  Some of her actions in the period after breakup were influenced by the fact that she was aware, in 2018, that she was unable to bring a de facto property settlement in the Family Court.
31. [31]
    COM was questioned about having gone to the police and telling the appellant that she was doing so.  She explained that that was when he refused to stay away.  She explained further that:^[42]

“… He was undressing his own biological 12 year old daughter with his eyes.  I recognised the predatory look he had in his face and I told him to stay away.  He refused. … I refused to have my children go through exactly what I went through, so I told him if he didn’t stay away, I would go to the police.  He laughed at me in my face and said it doesn’t matter what I say, no one’s going to believe me, anyway, over him.  So I went to the police when he was in Asia, so that I knew he was out of the country, and that I wasn’t going to get harassed”.^[43]

32. [32]
    COM explained the absence of any allegation of sexual abuse in letters written to the appellant after separation, as well as entries in her diary, by explaining that she grew up believing that what he did to her was normal behaviour.  She also responded saying, in effect, why would she write about it as an adult.^[44]
33. [33]
    When questioned about why she would write love letters to the appellant when at the same time he had sexually abused her, without mentioning the fact that he had been sexually abusing her, she explained that “If it’s supposed to be a love letter why would I write that”.^[45]  She accepted that the letters reflected her true emotions,^[46] but explained at the end that at least some of them were because “I grew up believing what he did to me … as a child was normal behaviour.  I believed that he loved me and that it was normal for us”.^[47]
34. [34]
    COM added, in a response to a question in cross-examination, that she did not reveal the sexual abuse when she was 13 in 1999, because she was not fully aware that it was the wrong thing to do and “because at 13 I believed it was normal behaviour for us”.^[48]

Evidence of SIS

35. [35]
    The evidence of SIS was that she was about four to five years old when she started living with the appellant on the farm.  She shared a room with COM.  The sexual abuse in respect of her commenced when she was between nine or 10, and ended when she ran away at 14 years old.^[49]
36. [36]
    SIS had a general recollection of the first time anything happened between herself and the appellant.  It was that she was in her bedroom and in her pyjamas when the appellant came in and took her pyjama bottoms off, spat on his fingers, touched her and then inserted his penis in her vagina.^[50]
37. [37]
    The four counts of rape^[51] all had a similar explanation in SIS’s evidence.  They involved the appellant spitting on his fingers, touching her vagina and inserting his penis.  The locations included the lounge room,^[52] outside in a paddock,^[53] and in the appellant’s bedroom.^[54]  On each occasion SIS described the appellant’s penis being in her vagina for just a short time or “not very long at all”.
38. [38]
    After her mother died in January 1999, SIS went to live with her father in Rockhampton.  She stayed there for about six months.^[55]  While there, SIS went to the police station where she was interviewed.^[56]  However, she wanted to return to see her brother and COM, and therefore went back to the farm where the appellant lived.  SIS said she was not allowed to leave because the appellant would not let her live with her biological father again.^[57]  When she returned to the house at the farm, the sexual abuse started again.  Counts 9 and 11 occurred after she returned.
39. [39]
    SIS also said that there were other occasions when she had sex with the appellant, which occurred on occasions such as when if she wanted things that were not on the shopping list, or did not want to do a chore, or go to friends’ places.  She described this happening frequently, at the rate of once a week.^[58]  She also described the frequency of the sexual assaults, saying that she and COM would sometimes sleep with the appellant and when she [SIS] did so the appellant would always have sex with her.  She described this as happening at least once or twice a week.^[59]
40. [40]
    SIS said she ran away from the farm when she was 14 and stayed with a woman (TAF) she knew.^[60]  She told TAF what had happened to her.^[61]
41. [41]
    SIS gave evidence that she had observed a single act between the appellant and COM.^[62]  When she returned to the farm she said she wanted to return to Rockhampton.  She conceded that she knew her father would pick her up if she asked him to and agreed she had never rung her father to do so.^[63]
42. [42]
    She was confronted about disclosures made in 1999, which included that she saw acts between the appellant and COM on 10 occasions.  She accepted that if she had told police that she saw 10 incidents of a sexual nature between the appellant and COM, that would have been untrue.^[64]  She also accepted that her statements in 1999 were untrue.^[65]  She agreed that she had withdrawn the complaint against the appellant,^[66] and said she did not want to live at the farm because it reminded her of her mother.  She also said that on occasions when she had a nightmare, she would still go into the appellant’s bed because she was scared, even though that would lead to unwanted sexual intercourse.^[67]
43. [43]
    SIS was cross-examined about aspects of the interview she gave to police in March 1999.  She was then nine years old.  She was also cross-examined about her real reason for not wanting to go back to the farm.  What was put to her was that it was because it reminded her of her mother.  SIS agreed.^[68]  It was put to her that the reason she made the police complaint in 1999 was a means to avoid living in the farmhouse.  SIS responded that she did not want to live in a house where she was getting abused.^[69]
44. [44]
    She was asked about the withdrawal of the complaint she had made in March 1999:^[70]

“Later on in the year in 1999, you withdrew the complaint against [the appellant] and went to live back at [the farm] with him, your sister, and your brother? ---That’s because I missed my – my sister and my brother.

All right.  But you withdrew the complaint.  Do you accept you did that? ---Yeah.

And when you did that, you hadn’t been speaking to [the appellant] in respect to that at all? ---No.

That’s something you did by yourself? ---Yes.”

45. [45]
    It was suggested to SIS that the appellant had accused her, in the week prior to her leaving home, of abusing alcohol and taking illicit drugs.  SIS responded by saying, “I have – did not touch drugs”.  She added later, “… I know for a fact that I did not touch illicit drugs until I was much older”.^[71]  Counsel cross-examining SIS was careful to make it clear that he was not suggesting that SIS had actually done those things, but rather that she was accused of doing so by the appellant.^[72]
46. [46]
    Other matters put to SIS and her responses included:

    1. (a)
       that the appellant had slapped SIS; she did not recall;
    2. (b)
       she did not recall whether she had been listed as a missing person when she left home;
    3. (c)
       she had made a complaint about the appellant in 2003, namely that he had slapped her and was sexually assaulting her; she recalled telling police and Child Safety about the sexual assaults, but not the slap or the drugs;^[73] and
    4. (d)
       she did not recall withdrawing the complaint about the appellant in 2003; at that time SIS accepted that she was hearing voices and having “full on” conversations with her deceased mother.^[74]
47. [47]
    SIS was cross-examined by reference to Child Safety records.  She said she could recall making complaints to them about the sexual assaults by the appellant, but not about his accusation of using drugs or being hit by the appellant.^[75]  It was also put to SIS that she told Child Safety (or someone else) that she was “hearing voices and having full on conversations with [her] dead mother”.  SIS agreed and also agreed that it was something that was real to her at the time.^[76]
48. [48]
    SIS explained part of the reason she withdrew the complaint:^[77]

“And after you got what you wanted, I suggest to you, and lived with [TAF] you then withdrew the complaint to the police? --- It was pretty much just my word against his.  At that point in time my sister was not ready to come forward with whatever happened.”

49. [49]
    SIS accepted that she remained in contact with COM over the years, saying it was “On and off”.^[78]  When asked whether she had ever lived with COM, SIS said, “yes, vaguely, for a short time”.^[79]  She denied ever having a conversation with COM about making a complaint.
50. [50]
    SIS said that she had not told anyone, apart from the police in 1999, about what had happened to her, explaining that she was referring to COM or her teachers.^[80]
51. [51]
    SIS accepted that it 2021 she raised the issue of compensation for what she had suffered.^[81]  Defence Counsel asked SIS if she thought the appellant owed COM, to which she answered, “No.  He owes his children, though”.^[82]  When pressed as to whether she still wanted money from him, despite believing he owed his children money, SIS responded saying, “… I believe … he should compensate for all the mental shit that I’ve had to deal with”.^[83]
52. [52]
    In re-examination SIS was asked to say what she could remember of the occasion she saw things happening between the appellant and COM.  She said that she could see what was happening reflected in the mirror, that COM was lying on her back and the appellant was standing between her legs and had his penis in her vagina.^[84]

Evidence of the father and his ex-partner

53. [53]
    SIS’s biological father and his ex-partner gave evidence relating to events in March 1999.  Each said that SIS had revealed that the appellant was touching her.  The father said SIS had explained it was touching with the hand and at other times with his “doodle”.^[85]  The ex-partner said she asked where she was being touched, and SIS pointed to her groin.  She was then asked if SIS said anything else, to which she said, “All she said was that it was internal.  I asked no more questions”.^[86]
54. [54]
    SIS was upset about her mother’s death and said she did not want to go back to the farm because it reminded her of her mother.^[87]
55. [55]
    While SIS and the brother were staying with their father, the appellant came up once to pick up the brother and take him home.  SIS did not want to go back.^[88]
56. [56]
    The father said he dropped SIS back to the appellant’s farm because she wanted to return and missed her sister (COM).^[89]  He said he would not have dropped SIS back if he had concerns about her safety.^[90]
57. [57]
    After SIS and her brother went back to the farm, on rare occasions they would come to stay with the father, but not COM.^[91]

Evidence of the brother

58. [58]
    The brother’s evidence was confined.  He lived with the appellant from when he was about 11 years old.  After their mother died, he and the two sisters went to live with their biological father for about a term.  He was homesick and moved back to the farm with the appellant.  SIS did not move back at that time.
59. [59]
    In cross-examination he said:

    1. (a)
       he saw no sexual interaction between the appellant and either COM or SIS;
    2. (b)
       when he went to live with his biological father, COM did not wish to go as she had a poor relationship with that father;
    3. (c)
       when he went back to the farm SIS did not; she came back a couple of weeks later; and
    4. (d)
       he could not recall SIS saying that she did not like to be in the house at the farm because it reminded her of her mother.

Ground 1 - appellant’s contended use of the statement

60. [60]
    It was contended that the four aspects of the statement set out in paragraph [8] above were inconsistencies which could have been used by the appellant at trial in the following way:^[92]

    1. (a)
       if what was in the statement was correct, then SIS would have known what was happening was wrong before she reached high school, because she made disclosures in 1999 when she was nine years old; the information in the statement casts doubt on the truthfulness of the 1999 disclosures;
    2. (b)
       the evidence at trial demonstrated that SIS could have left the farm whenever she wanted to, and she accepted she could have called her father at any time to pick her up;^[93] that difference raised a concern about her truthfulness and reliability;
    3. (c)
       it was put to SIS that the appellant accused her in 2003 of using illicit drugs and abusing alcohol while she lived with him; SIS denied the drug suggestion saying, “No.  Because I know for a fact that I did not touch illicit drugs until I was much older”;^[94]  SIS moved out when she was 14 years old;^[95]  the statement suggests she was using drugs at the age of 14, and is therefore inconsistent with her denial about drug use at the time, and contradicts her reasons for wanting to leave the farm in 2003; and
    4. (d)
       when asked whether she ever lived with COM, SIS responded saying, “Yes, vaguely, for a short time”;^[96] that is inconsistent with the statement; the statement mentions a seven month period immediately after COM separated from the appellant; that period was relevant to the risk of concoction between SIS and COM; the difference between a “short time” and about seven months was raised by defence Counsel in the application for a mistrial; the Crown’s submission was that SIS still accepted that she lived with her sister for a period of time;^[97] the issue is that both SIS and COM gave evidence of an on and off again relationship;  SIS’s statement that she lived with COM for a “short time” is consistent with that; however, the fact that SIS stayed with COM for more than half a year, at a point in time when COM was requesting sole ownership of the house, gives rise to a forensic disadvantage, and makes the risk of concoction real.
61. [61]
    It was submitted that the court could not ignore even a relatively slim possibility that the defence had been forensically disadvantaged by the non-disclosure of the statement.  It was enough that the opportunity which the defence was denied could have made a difference to the verdict.^[98]

Consideration – Ground 1

62. [62]
    It is convenient to consider the four aspects set out in paragraph [60] above separately.

Paragraph 8(a) – 1999 Disclosures

63. [63]
    The proposition at the heart of this aspect of the case is that SIS made sexual abuse disclosures in 1999, and if the statement was true, it casts doubt on the truthfulness of those disclosures.  This is said to be triggered by that part of the statement in which SIS said it was not until she was in high school that she realised what the appellant was doing was wrong.
64. [64]
    The evidence from SIS was that in 1999 she told her father and his partner, and then went to the police.  She was then 10 years old.^[99]  Four years later, when she ran away, she told TAF about the sexual offending.^[100]
65. [65]
    Cross-examination covered the following points:

    1. (a)
       SIS told police in March 1999;^[101]
    2. (b)
       she was cross-examined about what she said as to the good and bad things about where she lived;^[102]
    3. (c)
       the interview also contained sexual abuse allegations;^[103]
    4. (d)
       what SIS said then mirrored her evidence at trial;^[104] and
    5. (e)
       she said, “I didn’t want to … have to live in a house where I was getting abused”.^[105]
66. [66]
    SIS said she withdrew the complaint made in 1999 because she missed her siblings.^[106]
67. [67]
    SIS was cross-examined extensively with the assistance of records obtained from Juvenile Aid, Child Safety, Police and others.  In the course of that cross-examination, SIS was questioned about the complaints of sexual abuse she made against the appellant in 2003, the withdrawal of that complaint, and it was put to her that in 2003 those accusations were being made she was making false accusations of sexual assault.  The essence of that cross-examination is set out below.

“Put: in 2003 SIS made a complaint of sexual abuse against the appellant:^[107]

“All right. Now, you had a conversation with the Bundaberg Juvenile Aid Bureau as well as Child Safety and you made another complaint about [the appellant] sexually assaulting you; do you recall making a complaint at about that time?---No.

And when I say ‘sexual assault’ I’m using that as a shorthand, it’s about sexual offences you said [the appellant] had committed on you?---Yes.

So do you recall telling police and Child Safety about - - -?---Yes, I do.

Okay. You do. But not the other things?---No.

Not about being struck by [the appellant], not about the police being called?---No.

And not about the accusations of drugs?---No.”

Put: in 2003, aged 14, SIS withdrew the complaint about the appellant:^[108]

“All right. Now, you then told the – and I don’t know whether I’ve got the sequence right, and perhaps I’ll do it in reverse. In 2003 you withdrew any complaint of a sexual nature against [the appellant]?---I cannot remember.

That’s a conversation you had with the police officer about the complaints you’d made about his behaviour and you withdrew that complaint in 2003?---Okay.

All right. Do you recall withdrawing a complaint at all at that time?---No.”

Put: in 2003 SIS was making false accusations of sexual assault:^[109]

“I suggested to you that you were making false statements of sexual abuse in order to remove yourself from living with [the appellant]? And you’ll just have to answer in words. You did - - -?---That it wasn’t true.”

68. [68]
    In re-examination SIS said she could not recall wanting to withdraw her complaints in either 1999 or 2003.^[110]She said what she told police in 1999 were the incidents she had related at the trial.^[111]
69. [69]
    Whilst SIS made the complaints to the police in 1999, it is a fair inference that she did so as a result of making the disclosures to her father and her father’s partner.  No doubt, given that she was 10 years old, it was they who organised for her to be taken to the police.  The evidence of the father and his partner go only to indicate the content of the disclosures made to them by SIS.
70. [70]
    There is therefore nothing in the evidence given at trial to show that in 1999, when SIS went to the police, she knew what the appellant was doing was wrong.  All that can be said, based on the evidence about what she told police in 1999, was that it was the same incidents that she told the jury about at trial.^[112]
71. [71]
    It therefore follows that the statement is not necessarily inconsistent with the evidence given at trial.
72. [72]
    The assertion made in the statement was not quite as bald as has been put by the appellant, namely that SIS did not know what he was doing was wrong until she was in high school.  The statement contains further matters which must be read in context which impact upon that bald statement.  Thus:

    1. (a)
       when she was nine SIS only knew that the role of an adult, especially the care-giver, was to do no harm to those they cared for; she trusted the appellant and “did not know what this person was doing was ‘wrong’”;
    2. (b)
       “Not until I was in high school did I realise, that this treatment or attention that this person gave me, was not out of love or protection.  It was out of their own selfishness”; and
    3. (c)
       “when I became a teenager, with learning more about the world and how relationships worked, I realised what this person was doing was wrong.”
73. [73]
    In my view, none of that is necessarily inconsistent with or would cast doubt on the truthfulness of the 1999 disclosures.  SIS was only 10 when she saw the police in 1999.  It is not certain what she told them, except at a level of generality to the effect that what she told them was the same as what she told at the trial.
74. [74]
    Indeed, the attack mounted at the trial, via the use of records from various institutions such as Juvenile Aid, Child Safety and Police was a more powerful attack than could be produced by reference to the statement.

Paragraph 8(b) – Returning to where she felt safe

75. [75]
    This aspect of the case focuses on that part of the statement where SIS said that when she returned to the farm after staying with her father, the appellant would not let her return “to where I felt safe”.
76. [76]
    The point made here is that the evidence at the trial demonstrated that SIS could have left the farm whenever she wanted, and she agreed she could have called her father at any time to pick her up.  The difference between that and what she said in the statement raised a concern about her truthfulness and reliability.
77. [77]
    The evidence at the trial already exposed those matters.  SIS knew she could call her father and he would collect her.^[113]  That, of itself, was a foundation to argue that there was doubt about SIS’s credit, because her evidence was that after living with her father she went back to the farm and was not allowed to leave.^[114]  Cross-examination elicited the fact that she knew if she asked her father he would have picked her up, but she did not ring him.^[115]
78. [78]
    That being the state of affairs, nothing is added by what is said in the statement on this aspect.

Paragraph 8(c) – Use of drugs and alcohol

79. [79]
    The statement contained the following passage relevant to this aspect to the case:^[116]

“When I started ‘coming of age’, from 14 onwards the anger continued building, and I moved again.  I got a job to support myself, moved in with friends.  I abused myself by seeking attention in unhealthy ways.  Sometimes I’d even sleep with someone just so I had somewhere to stay.  I self-harmed by taking unhealthy risks.  Partying.  I used substances.  I continued working to support my habits.  At 18, I started doing methamphetamines.”

80. [80]
    As can be seen the statement does not, on its face, say that SIS abused herself and used substances “from the age of 14 onwards”.  No particular timeline is indicated in the statement except that 14 is used for the start point and 18 is used as a reference to “doing methamphetamines”.  A reasonable inference from what was said in the statement was that there was a time progression between the start point at 14 and the steps referred to, namely getting a job to support herself, moving in with friends, abusing herself by seeking attention in unhealthy ways, and partying and taking substances.  On that basis the statement is not necessarily inconsistent with her denial about drug use at the time, nor does it contradict her reason for wanting to leave the farm in 2003.
81. [81]
    Her evidence at the trial was given in a context where Counsel cross-examining was quite specific in making SIS understand that he was not asking if she was actually doing these things.  Thus, one sees in the cross-examination the three passages set out below.
82. [82]
    Put: appellant accused her of abusing alcohol; SIS did not recall:^[117]

“All right. He also was accusing you of taking illicit drugs?---I have – did not touch drugs - - -

Sorry, I’m not talking to you about whether you were or were not doing these things; I’m saying that he accused you of doing these things?---I do not recall any of that, no.”

83. [83]
    Then:^[118]

“… So in 2003, you were accused by [the appellant] of drinking alcohol, taking drugs and he also struck you. Does that – is that something you recall occurring?---No.”

...

“So do you recall telling police and Child Safety about - - -?---Yes, I do.

Okay. You do. But not the other things?---No.

Not about being struck by [the appellant], not about the police being called?---No.

And not about the accusations of drugs?---No.”

84. [84]
    And:^[119]

“I understand. I’m sorry. And again, it’s similar in respect of what I said, there were accusations about you taking drugs and drinking too much. Those accusations may have occurred but you just may not be able to recall those accusations now?---No. Because I know for a fact that I did not touch illicit drugs until I was much older.

Again, I’m not asking you about what in fact you were doing, I’m asking you about accusations which were made to you by [the appellant]. That is, that he told you he believed you were drinking?---Yeah. He might have believed that but it wasn’t - - -

And he told you those things and you were fighting about those things with him?---Yeah. Because he was telling me I was doing something that I probably wasn’t even doing.”

85. [85]
    Once it is understood that the point of the cross-examination was not to establish that SIS was actually using drugs or other substances, the suggested inconsistency falls away.  That is even more so when, as noted above, the statement is not as clear or emphatic as the appellant’s contentions would have it.

Paragraph 8(d) – Lived with her sister for seven months

86. [86]
    The contention advanced here centres around a response from SIS to a question about whether she ever lived with COM in the period since 2012.  That response is said to be inconsistent with the statement which refers to SIS living with COM “for approximately seven months” in about 2013.
87. [87]
    The full passage of evidence within which the relevant response was given is as follows:^[120]

“Now, when you were – back in 1999 when you were living in Rockhampton did you speak to your brother or sister via telephone?---I cannot recall.

All right. If you – I suggest to you you were speaking to them on a weekly – sorry. Firstly, it would be [COM] because [your father] was with you, but at the point when you made your first complaint to the police were you talking to [COM] on a weekly basis via telephone?---I don’t recall.

And at that stage did not mention to [COM] at all about any of the things that you were suffering?---No.

And you’ve given evidence about the – and over the years you’ve remained in contact with your sister? ---On and off, yes.

And you were aware – well, when do you – do you recall when [COM] left [the appellant]? ---No, not really.

If it was about 2012, you wouldn’t disagree with that.  Does that sound about right? ---It was, like, nine years ago.  So yeah, about that.

Right.  Did you live with her – in that intervening period between 2012 and now, were you ever living with [COM]? ---Yes, vaguely, for a short time.

And did you remain in contact with [COM] in that period of time?---Like, I’ve had an on and off relationship with my sister.”

88. [88]
    As can be seen from the questions asked at the trial, the response “for a short time” was given in the context of the time period specified by the question, namely “the intervening period between 2012 and now”, which was a period of about nine years.  When seen against the period of nine years, seven months might be called a “short time”.
89. [89]
    Further, the passage started by testing her recall of events: “do you recall when” and “If it was about … you wouldn’t disagree with that”.  It is possible that SIS understood the next question, the one upon which reliance is placed, as also being a question about her recollection, rather than the events themselves.
90. [90]
    Further, the questions leading to that response were directed to whether COM and SIS had remained in contact.  SIS described the relationship as being “on and off”.
91. [91]
    The thrust of the appellant’s contention is that if SIS had stayed with COM for more than half a year, a point in time when COM was requesting sole ownership of a house, that fact gave rise to a forensic disadvantage and made “the risk of concoction real”.
92. [92]
    As to the issue of concoction of evidence, nothing of the kind was put to SIS.  Nor was it put to COM.
93. [93]
    SIS was cross-examined about whether she had a conversation with COM about making a complaint:^[121]

“What I’m asking you is whether you’d had a conversation with your sister about - - -?---No.

- - - making a complaint. After – before or after your sister has made this complaint, did you discuss with her what you each say had happened?---No.

And she was staying with you last night – which I’m not being critical of – but did she discuss the evidence she gave yesterday with you?---No.”

94. [94]
    When COM was cross-examined, she said that she and SIS did not have a particularly close relationship, but they spoke week-to-week, even in March 1999.^[122]  As to what she told police in 1999, COM said:^[123]

“Right. You also – I’ll use the words as it’s recorded:

She also stated that she felt her little sister would have told her if anything was happening to her.

That’s true?---I thought so at the time. Yes.

Yeah. So, in terms of it, you talk about having a relationship with your sister – a relationship of siblings – but if anything like that, the relationship you had with your sister, you would expect you would know about it?---I thought so, but we didn’t – we still don’t have that type of relationship.”

95. [95]
    In my view, what was said in the statement lends little to what was available otherwise if a case of concoction was to be put.  COM and SIS were sisters who had been abused by the same man, their stepfather.  They were together for a substantial period during which time the abuse occurred.  There was enough in the information known from what COM told the police in 1999, to treat it as a springboard for an investigation of concoction if that was thought to be a worthwhile defence tactic.  Plainly it was thought not wise to follow that line.  One can readily see a forensic reason why defence Counsel would not do so.  There was no question that the relationship between the appellant and COM was an unusual one, in the sense that after her mother died she married her mother’s partner, and had her first baby to him at the age of 18.  Added to that, there were the complaints to the police in 1999, in the course of which COM responded that if anything had happened to SIS she felt that SIS would have told her.  Pursuit of the line that the two sisters had concocted their account would rightly be seen as fruitless, if not dangerous.  Both were fairly outspoken about their feelings towards the appellant, and that line would likely have provoked an even stronger response which may well have resonated with the jury.
96. [96]
    This ground fails.

Ground 2 - unreasonable verdicts

97. [97]
    The appellant challenges all verdicts on the basis that they are unreasonable and not supported by the evidence.
98. [98]
    The submissions advance seven points in respect of the verdicts concerning offences against COM only:^[124]

    1. (a)
       what was said to police in 1999 was inconsistent with any sexual abuse having taken place to that time;
    2. (b)
       COM’s letter to the appellant,^[125] written when she was between 15 and 18, is inconsistent with her evidence;
    3. (c)
       she made no suggestion of abuse at the time she separated from the appellant;
    4. (d)
       Count 5 was inherently implausible, given that on COM’s account all the family were in bed together, her mother was between the children, and COM said she put her hand inside the appellant’s boxer shorts but the zip had been sewn up;
    5. (e)
       there were contradictions in respect of Count 8; the brother said he did not see any interaction between the appellant and COM, and SIS said she only saw it once; both SIS and the brother were present at the dam on the occasion of Count 8;
    6. (f)
       COM had a motive to lie to extract money from the appellant; and
    7. (g)
       COM made new assertions at the trial, especially concerning the reason why she went to police after the appellant refused to put the house in her name; the assertion that it was because the appellant was undressing her daughter with his eyes had not been made before.
99. [99]
    The submissions advance nine reasons in respect of offences against SIS only:^[126]

    1. (a)
       there was no variation in the detail of how the rapes occurred;
    2. (b)
       there was a contradiction between the formal admissions^[127] and her evidence; in 1999 she said she had seen something done to COM “on maybe 10 occasions” whereas at trial she said it was only once;
    3. (c)
       there were countervailing explanations for why SIS made the 1999 complaints, including the then existing Family Court proceedings, the fact that SIS did not want to return to the farm and made up a story to prevent that, SIS preferred being at the house with her biological father, and she admitted hearing voices at the time of the complaints;
    4. (d)
       the events after the 1999 complaints were contradictory of them, including the absence of medical evidence when she was examined, the withdrawal of the complaints, and the fact that she went back to the farm;
    5. (e)
       there were countervailing reasons why she made the complaints in 2003, including the appellant’s accusations of alcohol and drug abuse, the appellant slapping her, the difficult relationship with the appellant, and SIS agreeing to live elsewhere while at school;
    6. (f)
       the lack of reasonable explanations for the withdrawal of the 1999 complaints;
    7. (g)
       the failure to explain why a preliminary complaint witness, TAF, was not called;
    8. (h)
       the existence of a financial motive to lie, namely the desire to get compensation; and
    9. (i)
       the brother saw no interactions.
100. [100]
     Finally, three reasons are advanced against the offences of both COM and SIS:^[128]

     1. (a)
        the jury should have identified a real risk of collusion; SIS and COM lived together for seven months in about 2013, spoke on and off over the years, and SIS said that in 2003 “It was pretty much just my word against his. At that point in time my sister was not ready to come forward with whatever happened”;
     2. (b)
        the disputes between COM and the appellant in the lead up to the complaints being made, including about money, succession, in whose name the house should be put, and the threats to go to the police; and
     3. (c)
        in the admissions, SIS said in 2003 that COM had not suffered similar incidents with the appellant; in 2003 COM was 17; therefore SIS’s account casts doubt on Counts 4, 5, 8 and 10.

Legal principles – unreasonable verdicts

101. [101]
     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.^[129]  Dansie reaffirmed the approach set out in M v The Queen.^[130]
102. [102]
     The Court reaffirmed the relevant task as being that laid down in M v The Queen:^[131]

3. “[8]
   That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that “the question which the court must ask itself” when performing that function is “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”, that question being “one of fact which the court must decide by making its own independent assessment of the evidence”.

3. [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.’”

103. [103]
     The High Court also said:^[132]

3. “[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’”.

104. [104]
     In Pell v The Queen^[133] the Hight Court said:

3. “[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.”

105. [105]
     In R v Miller^[134] this Court said:

3. “[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.”

Consideration – Ground 2 – Unreasonable verdicts

106. [106]
     The appellant’s submissions made different points in respect of COM and SIS respectively, leaving aside for the present moment those points suggested to be common to both.  It is convenient to follow the same format by way of consideration of those submissions.
107. [107]
     There are seven points concerning COM: see paragraph [98] above.
108. [108]
     The first point made is that when COM spoke to Child Safety and Police in 1999 no sexual abuse was disclosed.  She was then about 13 years old.  COM accepted that she told police that no sexual abuse had occurred but rejected that that was the true position.  In her evidence in chief and in cross-examination she maintained that the appellant was committing sexual offences against her from an early age.  Her explanations included two major points.  The first was that she had been groomed from a very young age and made to believe that the appellant not only had her best interests at heart, but that what was going on was quite natural.  The second was that she was too scared to speak out.
109. [109]
     There is no reason why the jury could not accept those explanations as credible.  For a start, they had the unusual situation that the complainant, who had lived with the appellant since she was very young, married her stepfather after her biological mother died.  Then, at only 18 she had her first baby with that person.  Those matters being uncontested, it is, in my view, not a long step for the jury to conclude that there might be truth in what COM said about the state of their early relationship.
110. [110]
     Further, the jury had the letters written by COM to the appellant.  Exhibit 4 was written somewhere between when she was 15 and 18 years old.^[135]  That letter described them growing “very close” after her mother died in 1999 and that all through high school COM “knew that you were the one for me and no boy could turn my interests to them”.  It describes the hurt COM felt when the appellant looked at other women and how, at age 15, she knew the appellant was “the one who was going to be my soul, the one who I can’t live without”.  There is no need to recite more of that letter, as that suffices to show that the jury could easily have formed the view that COM and the appellant formed a sexual relationship in the way COM described.  The letter was a powerful piece of evidence lending credibility to COM’s account that she had been groomed from an early age.  In the circumstances, the jury could easily form the view that COM would not reveal the sexual abuse, because she had been groomed to believe it was normal.
111. [111]
     The same comments apply to the second point made, namely that in Exhibit 4 COM did not mention the sexual offending.  The jury could well conclude that it was entirely unremarkable that that would be the case, given the emotional connection that the letter revealed.
112. [112]
     The third point is that the second letter, Exhibit 5, and the contents of COM’s diary^[136] did not contain allegations of sexual offending.  COM explained this on three bases.  The first was that she had grown up believing the offending constituted normal behaviour.  Secondly, she believed that the appellant actually loved her.  Thirdly, she explained that the letter was written when she was an adult and her priorities, particularly with respect to her children, had changed.  There is no reason why the jury was compelled to reject that explanation, if they otherwise thought COM was a credible witness.
113. [113]
     The next point concerned the suggested implausibility in respect of Count 5.  This concerned the fact that they were all in the bed together when the indecent dealing occurred and there was some evidence that the boxer short flies had been sewn up.  The suggestion is that the fact that the boxer shorts were sewn up was inconsistent with the appellant permitting indecent treatment.
114. [114]
     The difficulty confronting this contention is that COM was the only person to give evidence about the boxer shorts being sewn up.  She said she can recall that happening, but that it was at a later date than the date of the offence.  It was therefore open to the jury to accept that the flies were sewn up, but not at the time of Count 5.
115. [115]
     Furthermore, COM’s description of that offence was essentially that she was beside the appellant, covered in a light cotton sheet.  Her two siblings were on the other side of the appellant and on either side of their mother.  The offence included simply having a hand down the shorts and moving it up and down for a while, without anyone noticing.  In my view, there is nothing so inherently implausible about those events that the jury were compelled to reject them.
116. [116]
     The next point concerns Count 8, the count of indecent dealing while the appellant and COM were in a dam.  Implicit in the submission is that because SIS and the brother were present in the dam, Count 8 could not have happened because neither saw it.  That logic is flawed.  The evidence was that they were in “chest height water”,^[137] and there was nothing in the evidence to say that SIS or the brother were close by.  The circumstances were such that the other two could easily have missed what was happening, and it was open to the jury to reason in that way.
117. [117]
     The next point concerned the suggested existence of a motive to lie.  This is based on the need to get financial support and the refusal of the appellant to put the house in joint names.  COM was cross-examined on these matters and rejected the suggestion that she had such a motivation or that she lied.  Her explanation for going to the Police was based on keeping the appellant away from her children, and particularly her 12 year old daughter in respect of whom she said the appellant was “undressing her with his eyes”.  There is no sound basis for reaching a conclusion that the jury could not accept that evidence and reject the suggested motive.  If the jury thought COM was otherwise credible in terms of her evidence about the appellant’s interest in her as a young girl, they may very well have accepted COM’s evidence when she said she was concerned about her own daughter.
118. [118]
     The last point concerns an allegation which was said to have been made for the first time at trial, and not in either of the two Police statements which COM made.  The allegation was that she went to the Police because the appellant was undressing their daughter with his eyes.  One needs to recall that COM’s response was to a question in cross-examination which suggested a motivation to lie to the Police based on the appellant’s refusal to transfer a property solely into her name.  COM went to the Police in respect of offences against her, not anyone else.  It is those offences which she was questioned about by Police.  The jury may well have reasoned that it was hardly likely the Police would cross-examine COM in relation to her motivation for coming when her complaints related to sexual offending.  The absence of such an allegation in the Police statements is not a matter, in my view, which was so extraordinary that the jury were compelled to use that as a foundation for rejecting COM’s evidence.
119. [119]
     The next set of points concerned the evidence of SIS: see paragraph [99] above.
120. [120]
     The first was that there was a commonality in relation to the counts concerning her, with no variation in detail.  That is true, and outward changes in detail were the different locations.  But the point does not go very far.  There were other detailed differences which the jury could well have accepted as showing that SIS’s memory of the events was accurate and reliable.  For example:

     1. (i)
        Count 3 commenced with the appellant touching SIS on the shoulder and scaring her;^[138]
     2. (ii)
        Count 6 was described in detail, particularly in relation to the pyjama bottoms that SIS wore at the time;^[139]
     3. (iii)
        Count 7 concerned offending in a location unlike all the others, namely while picking mushrooms in a paddock;
     4. (iv)
        Count 9 contained the unusual matter of detail which was that the appellant, at the time of the offending, noticed a freckle on the side of SIS’s labia;^[140] and
     5. (v)
        in relation to Count 11, it contained the different detail of the appellant using a cloth from the drawer and his explanation was so that he could ejaculate into it and not get her pregnant.^[141]
121. [121]
     All of those variations of detail, and depth of details, could easily have been accepted by the jury as lending credibility to the allegations, certainly to the extent of overcoming any suggested “commonality” or lack of variation in detail.
122. [122]
     The second point concerned the variation in SIS’s evidence concerning how many occasions she had seen sexual interactions between COM and the appellant.  To the Police in 1999 she suggested 10 occasions, but in her evidence she could only recall seeing one.  There is no doubt there was an inconsistency.  It was highlighted in address and in summoning up.  However, her concession that if what she had said to Police when she was aged 10 was different from what she had said when she was a mature woman giving evidence, could easily be seen by the jury as lending credibility to her evidence.  Such a concession might be seen as frank and not likely to be made by someone who was dissembling.  The inconsistency was one of which the jury was well aware, and they were best placed to weigh that along with all of the other evidence given by SIS.
123. [123]
     The third point concerns what COM said to Police by way of her opinion about SIS.  How that could impact upon the credibility and reliability of SIS in the eyes of the jury is not explained and is difficult to accept.  Insofar as the point relies upon what SIS said to police in 1999, it must be borne in mind that she was then only 10 years old and she was responding to questions about why she did not want to return to the farm and why she liked living in her father’s house.  Given that her mother’s death was only recent when she spoke to Police in 1999, the jury could easily have taken the view that that tragic experience overshadowed her thinking.
124. [124]
     The previous point concerns SIS’s admission to hearing voices at the time when the complaints were made to the police and Child Safety in 2003.  No such link was made to what she said to Police in 1999.  In any event, absent any reliable psychiatric or other medical evidence, that suggested mental disturbance hardly went anywhere.  The “full-on” conversations with her dead mother may have seemed very real to her, and she may have thought she was hearing voices.  But there was no link before the jury to suggest that whatever that manifestation was, it necessarily affected the veracity of her memory, or her credibility and reliability otherwise.
125. [125]
     The fourth and sixth points concern matters that occurred in 1999 after SIS made complaints to the Police.  The absence of any evidence of abuse after a medical examination goes nowhere, in my view.  There was no evidence that an examination should have shown something linked to sexual abuse in any event.  The fact that the complaints were withdrawn was explained by SIS, and in a way which the jury might accept.  She missed her siblings and wanted to be reunited with them.  Given she was only about 10 at the time, and suffering in the aftermath of her mother’s death,^[142] the jury could well form the view that that was not an unusual position to be taken by her.  Finally, as for the fact that her father took her back to the farm and said he would not have done so had he been concerned about her safety, the jury could easily have taken the view that his attitude reflected nothing on SIS’s credibility and reliability.
126. [126]
     The fifth point concerns what is said to be a countervailing explanation for why SIS made the 2003 complaint.  It is suggested that she did not want to live with the appellant because he was accusing her of alcohol use and drug use, and slapped her.  However, those things were denied by SIS.  While there was some evidence by way of an admission that the appellant slapped her, that was, in my view, wholly insufficient to make the leap that is made in this contention.
127. [127]
     The seventh point concerned the fact that TAF did not give evidence.  The submission seems to suggest that there was a difficulty because the reasons behind the decision not to call TAF were not known.  There is nothing in the point.  The jury would have been told not to speculate, and nothing was raised in relation to it.
128. [128]
     The eighth point concerned the suggested financial motive to lie.  This turned on a reference to seeking compensation from the appellant as a means of vengeance.  However, in my view, this does not fully account for the evidence given by SIS on this aspect.  She said any financial motivation was born out of her view that the appellant “should compensate for all the mental shit that I’ve had to deal with”.  The evident anger and resentment in her response is something which the jury, in my view, could easily accept for what it was, namely an angry statement born out of experience, and not reflecting a truly formed motive for vengeance.
129. [129]
     The last point concerning SIS was based on the fact that the brother did not see any interactions between SIS and the appellant.  Apart from Counts 5 and 8, the evidence did not suggest that any member of the family was present at the time.  It is pure speculation that the brother should have been in the position to witness any of the offending, except that in Counts 5 and 8, which I have dealt with above.  This point adds nothing to those which went before.
130. [130]
     There are three points said to concern COM and SIS jointly: see paragraph [100] above.
131. [131]
     The first point concerns what is said to be the real risk of collusion between COM and SIS.  Reliance is placed on the statement by SIS that in 2003: “It was pretty much just my word against his. At that point in time my sister was not ready to come forward with whatever happened”.  If anything, that statement reveals only that there was some unidentified general conversation between COM and SIS about going public in 2003.  COM was then still married to the appellant; she did not leave him until 2012.  Why, the jury might ask, would COM detail her experiences to SIS and go public against the man she still loved?
132. [132]
     This point goes no further than the questions as to concoction and collusion dealt with earlier in these reasons.  The first point lacks substance for the same reasons.
133. [133]
     The second point also goes no further than those dealt with earlier in these reasons. It lacks merit.
134. [134]
     The third point concerns the fact that the admissions state that SIS said in 2003 that COM had not suffered similar incidents with the appellant.^[143]  Whilst the admission in question (paragraph 28) is situated between two paragraphs that are dated to 2003, it does not state that the admission relates to 2003.  However, assuming that to be so, it still goes nowhere.
135. [135]
     First, for the point to have any substance the jury would have to be able to conclude that there were discussions between COM and SIS sufficient to give SIS a detailed comprehension of what happened to COM.  There was no such evidence.  COM was 17 in 2003 and in a relationship with the appellant of an intensity described in COM’s letters.  The jury may well reject the suggestion that in those circumstances COM was likely to have revealed anything of substance to SIS.
136. [136]
     Secondly, to the extent that the point implicitly relies upon what SIS told Police in 1999, it goes no further than the points already dealt with earlier in these reasons.
137. [137]
     Thirdly, the suggestion that this point means SIS’s account “casts doubt on Counts 4, 5, 8 and 10” is misconceived.  Of those counts only Count 8 (in the dam) was one where SIS was said to be present.  As discussed earlier, there are reasons why SIS may well have been in no position to see what was occurring. Otherwise, the point goes no further than has been discussed.
138. [138]
     In my view, none of the points raised would compel the jury to doubt COM’s credibility or reliability to such an extent that they had to reject her evidence.  The same applies to the evidence of SIS.

Conclusion on Ground 2

139. [139]
     None of the matters raised lead me to conclude, after reviewing the whole of the record, that it was not open to the jury to have been satisfied beyond reasonable doubt as to the appellant’s guilt.  Except for the points said to arise from Victim Impact Statement all the suggested inconsistencies or deficiencies in the evidence were raised before the jury, who were in the pre-eminent position to make a judgment upon them. To the extent they were not raised in evidence or address, there were good reasons for that.
140. [140]
     In my view, the suggested weaknesses in the evidence have not been demonstrated to have reduced the probative value of the 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.
141. [141]
     This ground fails.

Conclusion

142. [142]
     All grounds of appeal have failed, with the consequence that the appeal should be dismissed.  I propose the following order:

1. Appeal dismissed.

143. [143]
     WILLIAMS J:  I agree with the reasons and order of Morrison JA.