R v KBC[2023] QCA 60

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA: On 24 June 2022, the appellant was convicted on nine counts of aggravated indecent treatment. The two complainants, M and P, were sisters. The appellant was M and P’s stepfather. At the time of the offending M was aged between 12 and a half and 15 and a half years old, and P between 10 and a half and 12 years old.
2. [2]
   Counts 1–7^[1] concerned complainant M. The alleged conduct can be generally described as touching M, over her clothes: by stroking or grabbing her breasts, sliding a hand up and down her thighs, pinching or stroking her buttocks, and stroking her leg from the knee to the upper thigh.
3. [3]
   Counts 8–9^[2] concerned complainant P. The alleged conduct can be generally described as touching P, over her clothes: on her vagina and by rubbing her breast with two fingers around the nipple area.
4. [4]
   The appellant challenges the conviction on two grounds of appeal:^[3]

   1. (a)
      Ground 1 – a miscarriage of justice was occasioned by a direction to the jury to assess the risk of collusion between the complainants by having regard to the truthfulness of evidence of preliminary complaints and/or by omitting to direct the jury to take into account evidence relevant to the risk of collusion; and
   2. (b)
      Ground 2 – the verdicts were unreasonable and could not be supported having regard to the evidence.

Ground 1 – jury mis-directions

5. [5]
   Ground 1 had two separate but related points.
6. [6]
   The first concerned an alleged miscarriage of justice occasioned by a direction to the jury to assess the risk of collusion between the complainants by having regard to the truthfulness of evidence of preliminary complaints.
7. [7]
   The second concerned an alleged miscarriage of justice occasioned by omitting to direct the jury to take into account certain evidence relevant to the risk of collusion.
8. [8]
   M’s evidence concerning counts 1 to 7 was left for the jury to consider in their deliberations about counts 8 and 9. P’s evidence concerning counts 8 and 9 was left for the jury to consider in their deliberations about counts 1 to 7. The evidence of each complainant was left as similar fact evidence concerning the case of the other complainant.
9. [9]
   Both points in Ground 1 were concerned with a direction given by the learned trial judge on the issue of using one sister’s evidence in support of the truthfulness and reliability of the other sister. Specifically, they were concerned with a direction as to the jury’s need to be satisfied that there was no real risk of collusion between M and P.
10. [10]
    The learned trial judge commenced by telling the jury:^[4]

“The first is you need to be satisfied that there is no collusion. You must be satisfied that the evidence of each sister is independent of the other. And by that – when I say satisfied that the evidence of each complainant is independent, I mean that you must be satisfied that there is no real risk that the two sisters have together concocted similar complaints. … The value of their combination and the strength in numbers is completely worthless if there is any real risk that what the complainants said was falsely concocted by them.

So I direct you that you cannot use the evidence of the sisters in combination unless you are satisfied that there is no real risk that the evidence is untrue by reason of concoction. No real risk that the evidence is untrue by reason of concoction. A real risk – is not a theoretical risk. It is a risk that is based on the evidence before you. Not one that is fanciful or a theoretical risk. That is talking about a risk based on the evidence before you. On that evidence you must be satisfied that there is no real risk of concoction.”

11. [11]
    Her Honour then gave the impugned direction as to the evidence:^[5]

“You have the evidence from both girls maintaining that their description of what happened to them was, in fact, their own experience – what actually happened to them. And the evidence is that [M] and [P] did not talk together about these things until the 20^th of April 2019. After that, there were periods of couch talks at unspecified times. Before that, you know that [M] had complained to various people about some things. In August of 2017, [M] had spoken to her mother and her stepmother. I think her stepmother’s recollection of that was that [M] had told her that the defendant was always hugging her, grabbing her butt, and asking her if she loved him. The mother’s evidence about what [M] told her in 2017 was that he had been inappropriate, that he had looked down her top, that he had touched her bottom.

You also have the evidence that [M] talked to her two friends at school, and you have the Snapchat messages in 2018. Then you have [P]. [P] said that she told her mother things that were happening. The mother’s evidence was at some point earlier [P] had complained of the defendant touching her breasts in bed – this was the time when [P] – wanted to come with her mother when she was collecting [M]. After that, in 2020 … 20^th of April 2019, the two girls talked. [P] talked to her stepmother and made the writing – and they both spoke to the police in June. She said she made the writing the day before she went to the police.”

First point – truthfulness of preliminary complaints

12. [12]
    Mr Copley KC, who appeared with Mr Black of Counsel for the appellant, focussed on that part of the direction where reference was made to the evidence of what M and P separately told their stepmother and mother. Essentially that is the passage highlighted in the preceding paragraph. The submission made was:^[6]

    1. (a)
       the directions amounted to an invitation to accept as the truth what each complainant said in proof of the case that there had been no collusion;
    2. (b)
       if the jury accepted that each complainant made a complaint (or complaints) of a sexual nature prior to Easter Sunday, 2019, that might have been apermissible consideration on the issue of collusion,^[7] but the truth of the complaints was not;
    3. (c)
       prior complaints are not admissible for the truth of them, they are only relevant to credit;^[8]
    4. (d)
       the use that the jury was permitted to make of the details of what each complainant said to the mother and stepmother conflicted with the correct directions given regarding the limited use that could be made of preliminary complaint evidence; and
    5. (e)
       the erroneous direction occasioned a miscarriage of justice because there is a reasonable possibility that the jury dismissed the risk of collusion due to the jury being permitted to consider the details of each complainant’s complaints as the truth of what occurred.
13. [13]
    The reference in subparagraph (d) above to the “correct directions given regarding the limited use that could be made of preliminary complaint evidence”, was to this direction:^[9]

“Now, I’m moving on to the things that the complainants said to their family and the friends before they spoke to the police. It’s what the lawyers have been calling preliminary complaint. This part of the evidence is only relevant to the complainant’s credibility. The particular complainant who was talking to her friends or her parents. It only goes to her credibility.

If we take [M] for example, the consistency between [M’s] evidence in those recordings and what she had previously told [DG] and [LN] and [P] and her parents about the charged offences is something that you can take into account as possibly enhancing the likelihood that her recorded evidence is true. It might make it more likely. It might bolster her credibility. Similarly, the consistency of [P’s] evidence and what she previously had told [VY] and [M] and her mother and her mother and stepmother might make it more likely that her evidence is true. However, the things that those girls said to those people – is not proof of what happened. You see the difference? it might bolster credibility, it might damage credibility, but it’s not proof that it actually happened. It’s just something you can take into account in assessing their evidence on the recordings.”

14. [14]
    In my view, the submission must be rejected.
15. [15]
    First, on the face of the passage there is no suggestion that the jury should, in considering the risk of collusion, first come to the view that what each of M and P said to other people (i.e. not to each other) was true.
16. [16]
    Secondly, the jury had been told that they had to be satisfied that “the evidence of each sister is independent of the other”, as opposed to “falsely concocted by them”. What followed was a reference to, but not a full review of: (i) the evidence of each of M and P in terms of their description of what happened to them; (ii) their evidence that they did not speak about these matters to each other until April 2019; (iii) the evidence of couch talks after April 2019; and then, by contrast (iv) what each of them had said to others, but not as between themselves, prior to April 2019. The contrast was emphasised by the learned trial judge then saying “After that, in … 20^th of April 2019… the two girls talked.” In context, what was said was not, and not likely to be understood as, an invitation to treat the earlier conversations as the truth of them.
17. [17]
    Thirdly, the learned trial judge gave a full direction on the use of preliminary complaint evidence in a way not challenged: see paragraph [13] above. That direction was commenced with the words: “Now, I’m moving on to the things that the complainants said to their family and the friends before they spoke to the police”. The jury could not have missed the fact that her Honour was referring to the pre-April 2019 statements. The directions on the use of such statements were clear.
18. [18]
    Fourthly, the statements to others prior to April 2019 were relevant in the jury’s assessment of the credibility of the relevant complainant, in so far as they said that there was no joint discussion until April 2019. But they were only relevant in that sense, as was made clear in the direction on preliminary complaint. For that purpose the jury had to decide what was said, and that involved potential differences between M and P, and those to whom they spoke. It was right to refer to the evidence for that reason, but that did not involve the implicit invitation postulated.
19. [19]
    Finally, in my view, when the directions are read as a whole, not considered in a piecemeal way, there is no real risk that the jury would have been misled in the way suggested.
20. [20]
    Defence Counsel at the trial did not seek a redirection to correct the error that is now suggested. In Dhanhoa v The Queen,^[10] McHugh and Gummow JJ observed:

“When no re-direction concerning evidence is sought at a criminal trial, the appellant can only rely on a failure to direct the jury on the evidence if he or she establishes that that failure constituted a miscarriage of justice. No miscarriage of justice will have occurred in such a case unless the appellant demonstrates that the direction should have been given and it is “reasonably possible” that the failure to direct the jury “may have affected the verdict”.”

21. [21]
    In the circumstances dealt with above I am unable to conclude that it is reasonably possible that the suggested misdirection may have affected the verdicts.
22. [22]
    This ground fails.

Second point – omission of evidence

23. [23]
    The second point relied upon a submission that, in giving the direction set out in paragraph [11] above, the learned trial judge omitted to remind the jury about certain conversations between M and her friends and P and her friend, earlier in time than April 2019. The submission summarised the omitted evidence thus:^[11]

    1. (a)
       P said that she first told M about what the appellant had done to her in April 2019, after the family had returned home from Stradbroke Island;
    2. (b)
       M said that she had no idea that anything had been done to P until P told her after Stradbroke Island, and that conversation occurred at Easter 2019;
    3. (c)
       Easter Sunday was on 21 April that year;
    4. (d)
       LN, a school friend of M’s, said that in 2018 M told her in a Snapchat exchange that the appellant had interfered with her little sister, P; and
    5. (e)
       DG, another of M’s school friends, said she was pretty sure that in 2018 M approached her at school and said that the appellant was being sexual with her and her little sister, that her little sister had told her he was touching her inappropriately.
24. [24]
    The central submission was that the evidence was relevant to the risk of collusion but the jury were not reminded of it. By not mentioning that evidence the trial judge “quarantined” the jury’s consideration of the risk of collusion to the evidence set out in paragraph [11] above. The omission to remind the jury of the evidence set out at paragraph [23] above occasioned a miscarriage because the jury was not permitted to consider it in assessing the risk of collusion, or the jury’s assessment of the risk was wrongly circumscribed.
25. [25]
    In my view, there are reasons why that submission cannot be accepted.
26. [26]
    First, the jury were reminded of that evidence. In the course of the impugned direction the learned trial judge referred to examples of evidence that had occurred before April 2019. At that point the evidence was not reviewed in detail, but in a shorthand way. Included in that was this reference: “You also have the evidence that [M] talked to her two friends at school, and you have the Snapchat messages in 2018”.^[12]
27. [27]
    The “two friends” were LN and DG, the witnesses referred to in paragraphs [23](d) and [23](e) above. The “Snapchat messages in 2018” involved LN.
28. [28]
    It is true that at that point the learned trial judge used a shorthand way of referring to that evidence. But, a short while later the learned trial judge referred to it again, referring to what M “had previously told [DG] and [LN]” in the passage set out in paragraph [13] above. Immediately thereafter her Honour again referred to that evidence in a shorthand way, when she told the jury (referring to M and P) that “Some parts of what they previously said is in the text messages. So you have the actual words of those messages.”^[13] This was a plain reference to the Snapchat texts.
29. [29]
    That was followed shortly thereafter, in the course of reviewing M’s evidence, by the jury being reminded:^[14]

“You also heard evidence that through 2018 and 2019 and perhaps 2017, she also talked at various times with her two friends, [DG] and [LN].”

30. [30]
    More importantly, in the course of reviewing the evidence in the trial, her Honour reminded the jury of that evidence in detail.^[15] Her Honour commenced by saying:^[16]

“All right. I’ll just remind you of some of the evidence of [M]’s friends, because there was that suggestion [M] had told her friends about [P] being touched before [P] actually told her, before April 2019. Mr Funch may have put 2017 to you in his argument, but he accepts it relates to a part of the evidence that said 2018. I’ll just remind you of the evidence.”

31. [31]
    The learned trial judge then read out the evidence of conversations between M and LN, and M and DG, that were “apart from the text messages”.
32. [32]
    Having been told that what M said (by Snapchat text and orally) to LN and DG was part of the evidence that they might consider on the issue of collusion, qualified by the direction that it went to credibility rather than whether the offending events actually occurred, the jury were reminded of that evidence, and the evidence of what P said, in detail.
33. [33]
    In my respectful view, it is not correct that the evidence of what LN and DG said as to conversations with M and P was quarantined from the jury’s consideration of possible collusion, nor likely that the jury misunderstood that they could weigh it in the balance on that issue.
34. [34]
    Secondly, in my view, it is relevant that the appellant’s experienced defence Counsel did not seek a redirection on this issue. There is good reason to think that Counsel did not do so as part of a forensic decision intended to work to the advantage of the appellant.
35. [35]
    LN’s evidence as to her Snapchat conversation with M was based on saved Snapchat texts, Exhibit 5.^[17] The Snapchat texts were between November 2018 and July 2019.^[18] None of those texts revealed what sort of conduct was occurring, and none of them referred to assaults on P. In evidence in chief, LN was asked about conversations with M other than via Snapchat. She said they spoke at school:^[19]

“Well, she was very visibly upset but she did say that he was touching her and her little sister very inappropriately but she only really spoke about what happened to her, which was he touched her inner thigh, her boob and her butt and her waist and that’s about what she had said in that time.”

36. [36]
    In that evidence LN did not say when those conversations occurred.
37. [37]
    In cross-examination, LN agreed there were conversations with M, other than via Snapchat, during the period November 2018 and July 2019.^[20]
38. [38]
    As to what M said, this exchange occurred:^[21]

“All right. Now, you would agree, wouldn’t you, that back in 2017 … [M] told you in a Snapchat conversation that [the appellant] had been sexually interfering with her little sister [P]. You agree?---No. It was in 2018, not 2017.

All right. Okay. Do you then agree that you – that [M] told you in 2018 that [the appellant] had sexually interfering with her little sister, [P]?---Yes.”

39. [39]
    Given that no Snapchat text referred to offending against P, and LN had saved all the texts that were relevant to the appellant’s conduct,^[22] even though the above questions were framed by reference to a Snapchat conversation, the answers were as to conversations other than by Snapchat.
40. [40]
    As to the timing, the learned trial judge sought to clarify when the conversations occurred:^[23]

“HER HONOUR: Can I just ask: has the witness given evidence about when they first spoke about these matters?

MR ANOOZER: Yes. I think so. I – she said 2018 was when she met her in person,” and that’s when she spoke to her in school.

HER HONOUR: All right. So is that – is that your evidence, [LN]?---Yes.

That it is 2018?---Yes.

All right. And is that before the first of the text messages, the Snapchat messages?---So she spoke about it in person first. And then we spoke it about it more over messages, which are the messages shown.”

41. [41]
    DG said that in 2018 and some of 2019 M told her many times that the appellant touched her inner thighs, bottom and breast area.^[24] When asked what words had been used by M, she said:^[25]

“That at first it was her little sister that came up to her and said that she thinks that he was being inappropriate with her, touching her inappropriately. And then [M] started noticing it too.”

42. [42]
    In cross-examination, DG said she was “pretty sure” it was in 2018 that she was told by M that the appellant had been sexually interfering with P.^[26]
43. [43]
    When M was cross-examined, she was asked when it was that she told LN about P being assaulted by the appellant. The following evidence was given:^[27]

“All right. Now, you told [LN] in 2017 that [the appellant] had been in your little sister’s room, touching her private parts; do you agree? --- Yes.

All right. Now, that was almost two years before [P] had told you that; do you agree?---Yes. So I told [LN] that after the fact, that around 2017 was when it happened to my sister.

I see? --- But I told [LN] after my sister had told me.

I see. Thank you? --- Yeah.”

44. [44]
    If a redirection had been sought, the jury would have been reminded of that evidence, which was plainly that the exchange with LN was after P revealed the assaults to M in April 2019, and LN had the dates wrong.
45. [45]
    Further, P was cross-examined on when she first revealed things to M, but only on the basis that it occurred in April 2019.^[28] A redirection would have resulted in the jury being reminded of that evidence as well.
46. [46]
    In the circumstances dealt with above I am unable to conclude that it is reasonably possible that the suggested omission from the directions may have affected the verdicts.^[29]

Ground 2 – unreasonable verdicts

47. [47]
    The legal principles applicable where the ground is that the verdict was unreasonable are well known. They were recently restated in Dansie v The Queen.^[30] Dansie reaffirmed the approach set out in M v The Queen.^[31]
48. [48]
    In Dansie, the Court reaffirmed the relevant task as follows:^[32]

“[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, areasonable 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 asignificant possibility that an innocent person has been convicted, then the court is bound to act and to set aside averdict 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.”

49. [49]
    The High Court also said:^[33]

“[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 acourt 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”.

50. [50]
    In Pell v The Queen,^[34] 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.”

51. [51]
    In R v Miller,^[35] 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.”

The appellant’s submissions

52. [52]
    The appellant advanced the following submissions in respect of the attack on the verdicts on counts 1–7 :^[36]

    1. (a)
       M’s evidence was tainted by the contradictory evidence of her friends and by her admitted compulsion to lie;
    2. (b)
       M was demonstrated either to be an untruthful person, or her credit was so significantly attenuated that her evidence about what she alleged the appellant did to her could not be accepted as truthful and accurate beyond reasonable doubt;
    3. (c)
       M said that she had no idea that P had been interfered with until P told her about it at Easter 2019;
    4. (d)
       the evidence of LN and DG was that M told each of them in 2018 that P had been interfered with;
    5. (e)
       if M said this, or even if she might have said this, then the jury was bound to have a doubt about the truthfulness of M’s evidence about what she alleged the appellant did to her;
    6. (f)
       the evidence which contradicted M came from two of her own friends, persons who had no relationship with the appellant;
    7. (g)
       should the point be made that M made complaints about the appellant in 2017 or 2018, therefore, prior to any possible collusion with P to make up a story, the matter to consider is that the fact she made those complaints then does not assist the case against the appellant because her friends’ evidence shows that M made up a tale about P at a time when, according to M, she had no idea that P was being interfered with;
    8. (h)
       if M made up a tale about P, then the possibility she had also made up a story about herself and the appellant is not put beyond doubt just because she told other people things closer to the time of the alleged events;
    9. (i)
       M said she was a compulsive liar, though she did say that this only extended to lying to get out of trouble; and
    10. (j)
        M’s complaint to her mother and stepmother in 2017 followed an argument between the appellant and her about her coming home late from a friend’s house.
53. [53]
    In respect of the verdicts on counts 8–9, the submissions were:^[37]

    1. (a)
       the only evidence to implicate on these two counts came from P;
    2. (b)
       P agreed that she never told the police about the incident the subject of count 8, and she did not know why she did not tell them as it was a detail she recalled very clearly;
    3. (c)
       P claimed that she told her stepmother about this incident but her stepmother’s evidence was quite different;
    4. (d)
       P’s assertion that she saw the appellant rubbing M’s leg in the car was contradicted by M’s evidence that the appellant only did this to M when he and she were alone in the car;
    5. (e)
       P admitted that she never told the police that the appellant inserted fingers in her anus, though she claimed she told her mother this; and
    6. (f)
       her mother denied that this was even disclosed to her; that contradiction of the complainant by her mother as well as other matters just referred to shows that the jury should have had a reasonable doubt about P’s truthfulness and accuracy; it was not the situation that her mother was to be regarded as untruthful.

Evidence at the trial

54. [54]
    The evidence at the trial came from: (i) M and P;^[38] (ii) LN and DG; (iii) VY;^[39] (iv) the complainants’ biological mother and father, (v) their stepmother, and (vi) the investigating police officer.^[40] In addition, formal admissions were made as to the birthdates of M and P, the sequence of houses in which M and P lived, and when Easter Sunday fell in 2019. The applicant did not give nor call evidence.
55. [55]
    The complainants’ biological parents separated in 2016. M and P spent most of their time with their mother. The appellant moved in with them in February 2016 when they were at Wakerley. The appellant and the complainants’ mother then moved to ahouse in Belmont in August 2016. The appellant married M and P’s mother in September 2018. From July 2018 until April 2019, they lived in the second house in Belmont.
56. [56]
    The prosecution case was principally comprised of the evidence of two children. The balance of the substantive evidence at trial consisted of the preliminary complaint witnesses.

M’s evidence

57. [57]
    During the time they lived in Wakerley, the appellant came into her bedroom at about 9 pm to say goodnight to her. He lay down beside her and stroked her breast with one hand for 10 to 15 seconds.^[41] The touching was over her nightie. His other hand was stroking the top of her thigh, moving up and down. He gave a kiss on her head, said goodnight and walked out. She said that P would have been in her bed and her mother may have been showering or on the couch. She said that she had not told anyone about this incident. It was one of the first times when she realised that what the appellant was doing was not normal.
58. [58]
    The family lived in the first Belmont house from August 2016 to July 2018. Counts 2–4 concerned a number of events alleged to have occurred on the same day at that house.^[42] One night, when her mother and P were out at netball training, M was in the house alone with the appellant. She had a shower and came downstairs and sat down on a couch. She was dressed in a towel, waiting for her clothes to finish drying in a clothes dryer. The appellant sat down next to her and put his hand on her thigh. He touched and rubbed her breast, over the towel.^[43] He told her that she should take the towel off as he slid his hand up and down her thigh.^[44] M felt uncomfortable and told him to stop. She stood up and, as she went to walk away, he pinched her buttocks over the towel.^[45]
59. [59]
    On another occasion the appellant collected M from her dance class and drove her home. Counts 5–7 occurred on this occasion.^[46] On the way home he stroked her thigh from her knee to her upper thigh near her genitals. He did this for much of the trip home.^[47] M told him to stop and moved his hand. She was scared to say anything because he might get angry. When they got home her mother was out at netball. The appellant asked M why she did not love him or why she did not show him more affection. He said that she never gave him proper hugs and that she never let him touch her. She went up to her room and changed into her pyjamas. When she went downstairs, he said to give him a hug. She gave him a hug. He then slid one hand onto her buttock and stroked it. He rubbed his hand up and down her back and onto her buttock again.^[48] After she gave him the hug, he did what he would normally do: he touched her breast.^[49] This occurred in the kitchen.
60. [60]
    He told her on one occasion that she should explore herself in the shower.^[50]
61. [61]
    M said that she sent her mother a text about his behaviour when her mother was in Cairns in 2017.^[51] She and the appellant had an argument over M coming home late. During that argument, the appellant told her that she should live with her biological father. The appellant took her phone, so M used her iPad to text her stepmother to tell her to pick her up. M then said:^[52]

“…that’s when… I just decided, no… I’ve gotta say it, so I told dad and I told mum… But I texted her about it, and I was really angry. … So I think, and she didn’t believe me, and I think it was because I said it when I was angry at him, and so she thought … I was just saying that ‘cause I was mad. … But yeah, it just came out because I, I was obviously angry at him and I didn't want him to get away with it.”

62. [62]
    M explained that she struggled to tell her mother because of her own fear that the disclosure would hurt her mother:^[53]

“And there were times where I really wanted to tell her and I would just sit in my room and cry because she, I watched her struggle a lot, and you know, he obviously helped her financially and, you know, they w-, she was just so happy, and she never witnessed that disgusting side of him, I guess. … And … like I thought, I knew it was gonna be hard telling her because … you know, in the back of my mind, she might not believe me or if she does, you know, she’s gonna be so upset, she’s gonna be broken, and, and just didn't really know what to do, and I didn’t wanna upset her or ruin anything, basically. … Because he was, he could be a nice person as well, and it was also like, um he has a daughter as well, …and me and her got really close ‘cause she’s older than me and I’ve always wanted an older sister, and you know, we were really close, I’d tell her everything, but I obviously didn’t tell her this either ‘cause I didn’t know how she would react to it and I didn’t wanna upset her. And so I was just thinking about everything that would change if I told mum, and yeah.”

63. [63]
    M said to her mother that the appellant always touched her bum, her boobs and that he said inappropriate things.^[54] Her mother said she would speak to the appellant, and later told M that the appellant said it was all made up.^[55]
64. [64]
    M told her father that the appellant had been “touching her inappropriately, like on the butt, on my boob”.^[56]M told her stepmother the same thing.^[57]
65. [65]
    M told her friend LN that the appellant had been touching her inappropriately and had rubbed her thigh in the car, but M did not go into details.^[58] M told her friend, DG, that he touched her inappropriately.^[59]
66. [66]
    M said that she did not tell anyone about him touching her breast or about the shower remark.^[60]
67. [67]
    On about Easter Sunday in 2019, M and the appellant had another argument. That led to M and P revealing the appellant’s conduct to each other.^[61] M told P that she hated the appellant for what he did to her. P said she hated him too. P then said that the appellant touched her inappropriately as well.^[62] M said that P told her that she woke up a couple of times during the night and saw the appellant touching her breast. On another occasion when they were living at their “old house”, P was on a sofa bed with the appellant’s sons when the appellant hopped in bed, and was “tickling her privates”, and “tried to stick his finger up her butthole”.^[63] P said she told her mother every time that it happened.^[64] P also said that there was a time when the appellant walked past P with his penis hanging out of his pants.^[65]
68. [68]
    M said she was in the car when P told her stepmother about what had happened to P.^[66]
69. [69]
    In her oral evidence M maintained her account, affirming that her interview was truthful. Relevant aspects of her cross-examination include:^[67]

    1. (a)
       M accepted that she had previously told her mother that she (M) was a compulsive liar; she explained that there “are things that I’ll compulsively lie about to get out of trouble”; she agreed she had lied to friends at school about having COVID-19, but said that was for attention and she could not really explain why she did it;^[68]
    2. (b)
       when she was 10, she used to have tantrums where she screamed out of a window that someone was trying to kill her; she also threatened to kill herself by jumping into a fan; as a result she started counselling with a psychologist; she had been undergoing therapy with a psychologist for eight years or more, and in the beginning her compulsive lying was part of what was addressed;^[69]
    3. (c)
       it was put to M that the offending conduct never have happened; she disagreed;^[70]
    4. (d)
       she agreed that when her mother and the appellant started a relationship M wanted her mother and father to get back together;^[71]
    5. (e)
       she agreed that she first made allegations of sexual abuse after a fight with the appellant; the fight was because the appellant dragged her down the driveway by her ear for coming home five minutes late;^[72]
    6. (f)
       she denied that the allegations of sexual abuse were made to manipulate her mother into letting her come back home at a time when she was staying at her father’s house after the fight;^[73]
    7. (g)
       she agreed that in 2017 she told her mother only that the appellant touched her bottom, wanted to hug her, asked M if she loved him and grabbed her bottom, but did not tell her mother or father about the other allegations;^[74]
    8. (h)
       she agreed that the allegations of sexual abuse she made in April 2019 occurred after another fight with the appellant, but denied it was to manipulate her mother;^[75]
    9. (i)
       she agreed that the allegations of sexual abuse she made to her stepmother occurred after a fight with the appellant, but denied it was to manipulate anyone;^[76]
    10. (j)
        she denied that she and P had discussed the allegations on numerous occasions; she said she had no idea about P’s allegations until P told her in April 2019; M was under the impression that P did not have much idea of M’s allegations;^[77] and
    11. (k)
        when asked about the Snapchat texts with LN, she gave the evidence set out in paragraph [43] above.
70. [70]
    In re-examination, M said that P had accused her of lying about things in the past but not about “being touched inappropriately”, and in “this particular matter, no … She hasn’t [lied]”.^[78]

P’s evidence

71. [71]
    P told the police that in October 2018, when they were at Belmont, the appellant came into the bedroom where she was sleeping on a mattress on the floor.^[79] This occurred on an evening when her mother was out at a bridal party and only she and the appellant were at home. He lifted her blanket, she woke, and he then walked out. She woke up later to feel her breast being rubbed. She did not open her eyes. She said the appellant was in the room. He rubbed her nipple using two fingers in a circular motion outside her clothing.^[80] She made an “angry face” and he walked out. She only opened her eyes as he left the room and she saw him walking out into the hallway through an open door.
72. [72]
    P said that she told M about this after they came back from Stradbroke Island in April 2019.^[81] She also made disclosures to her mother, stepmother, father, M and her friend VY.^[82]
73. [73]
    P gave evidence about other unparticularised incidents. This included the appellant coming into her bedroom and touching her breast and touching her thigh when they were in the car. P said she saw him do this to M and that M also told her.^[83] P said that he used to say “Why don’t you love me?” and would also smack her on the bottom.
74. [74]
    The circumstances of Count 8 were not revealed to the police in the s 93A interview but emerged in her pre-recorded evidence.^[84]
75. [75]
    One evening, when P was alone in bed at the first Belmont house, the appellant came in. P’s mother was downstairs.^[85] The appellant lay on the bed and tickled her on the outside of her clothes. He started on her stomach and then he tickled her private parts, including her vagina. She told him to stop. He tickled her three or four times. She said he touched her vagina as he tickled. All the tickling occurred outside of her clothing.
76. [76]
    P said that she told her stepmother and her friend VY about what the appellant did. P identified the Snapchat texts she had with VY, which became Exhibit 2. They refer to the appellant “sexually assaulting me and my sister”, that he “has been doing it to me a lot and for years”, and he had been “sexually touching me and my sister”.^[86] P also identified a handwritten note she had prepared when she saw the police: Exhibit 3.^[87]
77. [77]
    In cross-examination, P maintained her account. Relevant points to emerge included:

    1. (a)
       she wrote out the note, Exhibit 3, because she was scared of forgetting things when she spoke to police;^[88]
    2. (b)
       she and M had told each other their stories in April 2019 but she did not reveal the events of Count 8; however, she was “pretty sure” she had told her mother about that event; and she said she told her stepmother; she said that she did not know why she did not tell the police even though that story was one that was clear in her head; she denied that it was not true, saying “It is very true”;^[89]
    3. (c)
       it was put to her that the events never happened, which she denied;^[90]
    4. (d)
       she had been seeing a psychologist from the age of seven years, but that was stopped by her mother “because he wanted to put me on drugs for my ADHD”;^[91]
    5. (e)
       she maintained that she told her mother, though not the police, that the appellant had stuck his finger “up my butt”; she said she did not tell the police because “I thought I’d bring it upon myself”.^[92]
78. [78]
    Exhibit 3 was read to the jury:

“[The appellant] did this to me. When he would wake me up in the morning, he would give a squeeze to my boob.

He would touch my thigh when I was in the front of the car.

He would smack my butt and I told him to stop a lot, but he kept doing it.

I was sleeping in my stepbrother’s room on the floor on a mattress (I was having a sleepover thing with them), and he came in and started rubbing my boob, while I was asleep. I know this because I woke up, but my eyes were still closed. You get what I mean, right.

Every time I was left alone with him, I felt uncomfortable.

He would always say, “Why don’t you love?” and stuff and it was weird. And he is just a dirty F’d up man.

There was one incident that I believe was an accident, but he shouldn’t have been doing it anyway.”

The mother’s evidence

79. [79]
    The mother said that after M went to stay with her father for six weeks in about September 2017, M told her by email that the appellant “had been inappropriate with her and that he’d looked down her top and touched her bottom”.^[93]
80. [80]
    The mother said that P always had trouble going to sleep and had been to a psychologist who described P “as having elements of ADHD and Aspergers”.^[94]
81. [81]
    P told her mother that the appellant touched her breast.^[95] This disclosure was made when they were living at the second Belmont house. Immediately preceding it P had insisted that she should be able to go with her mother to collect M from M’s workplace. Her mother asked her why she would not get to sleep, and P said she did not want to stay there.^[96] The mother confronted the appellant about what P said, and the appellant said that he had gone into P’s bedroom on the night when P said it happened but merely “fixed up the blankets for the kids”.^[97]
82. [82]
    The mother agreed that P did not have breasts when she was 11 and 12, and P had not told her that the appellant had stuck his finger up her anus.^[98]
83. [83]
    The mother said that in April 2019, after they all returned from Stradbroke Island, she questioned M about the content of a call between M and P the night before, which the mother had overheard. M said “It’s because [P’s] told me everything. I know what’s happened. I’m not going to stand for it.”^[99]
84. [84]
    In April 2019 the mother said that M only told her that the appellant had touched her on the butt.^[100]
85. [85]
    The mother agreed that when M was 10, she had screamed out of a window that the mother was trying to kill her, as a result of which some neighbours confronted her. She explained that was when M started seeing a psychologist.^[101]

The father’s evidence

86. [86]
    The father said that he collected M after she had a dispute with the appellant in August 2017. M did not wish to talk to him about what had happened, and he said she could speak to her stepmother. That is where it was left.^[102]
87. [87]
    He said that in April 2019 P told him that when they were camping on Stradbroke Island, she woke up to the appellant sitting on the bed with his hand up her shirt and rubbing her chest.^[103]
88. [88]
    The father did not press M or P to discuss matters with him and he left it “in the hands of the professionals”.^[104]

The stepmother’s evidence

89. [89]
    The stepmother said that in August 2017, M said she did not want to be near the appellant because he made her feel uncomfortable because he always tried to hug her and grab her on the butt, and he would say “You should love me”.^[105] Between August 2017 and April 2019 M made no further allegation of sexual misconduct.^[106]
90. [90]
    The stepmother said that after Easter 2019, P told her that when they lived at Wakerley the appellant “had been inappropriate with her”, and “had got her to lay across his lap and that her pants were down, and that he was tickling her bottom, and that while he was doing that he actually touched … her butthole’”. On another occasion, P was on a mattress on the floor and he stuck his hand up her shirt and fondled her breasts. P said it made her uncomfortable and she pretended to be asleep.^[107]

LN’s evidence

91. [91]
    By reference to a series of text messages,^[108] LN said that M told her the appellant touched her inner thigh, breast, bottom and waist. A sufficient summary of her evidence is set out in paragraphs [35] to [40] above.

DG’s evidence

92. [92]
    A sufficient summary of her evidence is set out in paragraphs [41] to [42] above.

VY’s evidence

93. [93]
    VY’s evidence was contained in her s 93A interview, which was played to the jury. VY said that P had texted her on 21 April 2019 saying that the appellant had been “touching her inappropriately”, “touching her”, “rubbing up beside her” and “touching her chest area”. In one of the texts P said:^[109] “When I was around 9 or 10 he stuck his finger up my bum hole and at the end of last year I was asleep and I woke up with my eyes still shut and he was rubbing my boob”.

Consideration

94. [94]
    As is often the case, and as reflected in the submissions advanced for the appellant, the jury’s assessment of whether the evidence satisfied them of the appellant’s guilt depended to a large degree upon the credibility and reliability of the complainants, M and P. And, as is usually the case, the suggested deficiencies in the evidence of the complainants was made a feature in the defence address to the jury. Thus, defence Counsel urged the jury to consider:^[110]

    1. (a)
       the “high degree of implausibility in the stories that have been told”;
    2. (b)
       that “the versions of events that have been given by these two witnesses, [P] and [M], are wildly inconsistent, both internally and externally …, in the retelling, but also they’re contradicted by external sources”;
    3. (c)
       there was “evidence of significant dishonesty on behalf of these two witnesses”;
    4. (d)
       there was “lack of credibility on the part of the witnesses … a lack of corroboration … the presence of contradiction … the presence of collusion”; and
    5. (e)
       there was “a motive to lie and make a false complaint … [and] significant delay in the making of any such complaint”.
95. [95]
    Those themes were then developed in detail by defence Counsel, by reference to the evidence of M and P, by reference to the evidence of the other witnesses, and by reference to each count. In the course of doing so, defence Counsel effectively raised the substance of all of the points advanced on the appeal: see paragraphs [52] and [53] above.
96. [96]
    Thus the jury were asked to assess the credibility and reliability of M and P with all those points in mind, but they had the unquestionable advantage of seeing and hearing them, and all the other witnesses. This Court does not have that advantage.
97. [97]
    Further, I am mindful that an attack on verdicts on this ground requires not only that the weaknesses in the evidence must be identified, but also that it is demonstrated that these weaknesses reduced the probative value of the evidence in such a way that the 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. The mere identification of weaknesses in the prosecution case is not enough to sustain the ground.
98. [98]
    For the reasons which follow, I am unable to conclude that this ground has been made out.
99. [99]
    M’s evidence as to her compulsion to lie could well have been seen by the jury as something that applied to her younger days, and not applicable to matters as serious as her complaints about sexual assault. M said she would lie to get out of trouble, and some of the lies (that she had COVID-19 or was threatened by her mother) could well be seen as attempts to gain attention. What is more, the lies about threats by her mother led to the commencement of long-term counselling by a psychologist. The jury could well have taken the view that M was a troubled younger person, but that did not mean she was to be disbelieved about a matter as serious as sexual assault. That is all the more so, given that the lies in the past were to extract her from some situation, whereas the complaints of sexual assault were inevitably going to start aprocess involving police and courts. In my view, they were of a different nature and quality of anything before.
100. [100]
     M’s complaints commenced in 2017, and continued in 2018, well before the April 2019 disclosures. Her evidence received support in that regard by the evidence of LN, DG, her mother, her father, and her stepmother. There was a similarity between what was told to LN and separately to DG, namely that the touching had been on the inner thighs, bottom and breast area. There was a similarity between what was told to the mother and stepmother, namely that the appellant was touching her on the bottom. The father’s evidence was not that he heard a complaint but that he suggested M speak to her stepmother, which she did.
101. [101]
     It is true that there were differences between what was said in respect of the preliminary complaint, but that does not inexorably lead to a rejection of M’s evidence. The jury could well accept that memories differ, especially where what was said was not recorded.
102. [102]
     Much was made of the fact that M said she had no idea that P had been assaulted until after P told her in 2019, whereas each of LN and DG said M told them in 2018 that P had been assaulted. The jury could well have taken the view that even if LN and DG believed that to be the case, there was, nonetheless, reason to conclude that they were mistaken. M’s evidence was that she told LN after M had been told by P, and inferentially, LN had the dates wrong: see paragraph [43] above. The jury may have accepted that explanation, particularly as no Snapchat text from LN referred to offending against P and P was cross-examined only on the basis that she told M in 2019: see paragraphs [39] to [43] and [45] above.
103. [103]
     Any perceived conflict in M’s recall or attributed statements as to the timing of P’s complaint does not reduce the probative value of M’s evidence in such a way that the jury must have harboured a reasonable doubt about the appellant’s guilt. Even defence Counsel accepted that when referring to this issue he said to the jury: “Now, that may or may not cause you some concern”.^[111]
104. [104]
     That M’s complaints to her mother and stepmother were made after fights with the appellant does not take the matter further, in my view. The jury were not compelled to see that as a likely marker for inventing a story, as opposed to M releasing what had been bottled up for fear that it’s being revealed would crush her mother. The jury’s collective life experience may well have suggested that just because one person is angry with another person, that does not necessarily mean they lie. Her texts with LN record that concern,^[112] as does her police interview.^[113] And, the jury would have well aware that M had been struggling for some time, having counselling, and what might be considered normal fights within a family.
105. [105]
     Further, the disclosures to the mother and stepmother may have been after a fight, but that does not apply to M’s disclosure to LN and DG, nor to P’s disclosures.
106. [106]
     The jury had the advantage of seeing and hearing the evidence of M and P. Their accounts do not, in my view, have the hallmarks of a concocted account, or ones the product of collusion. Both M and P denied any such suggestion. Their evidence does not appear scripted or rehearsed and was accompanied by a level of detail that suggested a genuine account. Neither went so far as to say that there was skin on skin contact beyond touching the thigh. The jury may well have thought that concocted accounts would have suggested more direct offending, such as penetration of some kind, or skin on skin touching. Moreover, there were differences in their accounts that the jury might reason as the mark of genuine evidence giving.
107. [107]
     It is true that P did not tell the police about the events of Count 8. However, in my view, it does not follow that the jury were compelled to reject her evidence to such adegree that they could not reason to guilt. P explained that she did not know why she had not told the police, especially as the event was so clear in her head: see paragraph [77](b) above. The jury could have accepted that evidence.
108. [108]
     Further, the jury may have reasoned that the events of Count 8 were generally consistent with P’s earlier evidence to the police, and her complaints to others over time including her stepmother, that there were other occasions of indecent touching or sexual abuse by the appellant.
109. [109]
     The submissions focus on the inconsistency between P’s suggestion that the appellant inserted a finger in her anus, and P’s evidence that she told her mother about it and her mother said otherwise. The jury were not, in my view, compelled by this aspect to so doubt P’s account on the charged acts such that they could not reason to guilt. P said she told her mother and her stepmother. The mother did not recall it, but the stepmother did. And, P told VY in a Snapchat text.^[114] This is one of the inconsistencies raised for the jury’s deliberation. As it goes only to an uncharged act, and then only to credit, it is quintessentially a matter for the jury.
110. [110]
     The jury’s advantage of seeing and hearing M and P and the other witnesses provides an answer to the criticisms raised on the appeal. Critically, it cannot be concluded, in my view, that the jury should have had such a doubt about the evidence of M and P that they could not have been satisfied to the requisite standard that the appellant was guilty. Ultimately, neither the evidence of M nor P had irreconcilable difficulties. It was, in my view, reasonably open to a jury, taking account of the problems that were highlighted at the trial and the trial judge’s directions to it, to be satisfied that each complainant was truthful and reliable. Put another way, those weaknesses raised in the appeal do not reduce 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.

Conclusion

111. [111]
     For the reasons expressed above the appeal should be dismissed.
112. [112]
     The order I propose is:

1. Appeal dismissed.

113. [113]
     McMURDO JA: Morrison JA has set out the evidence at the trial and the arguments in this Court, making it unnecessary for me to do so. I agree with the analysis leading to his conclusion that it was open to the jury to convict on each of the charges. However I have reached a different view on the first ground of appeal. In my opinion, the trial judge misdirected the jury when giving what purported to be a comprehensive statement of the evidence on the issue of collusion between the two complainants.
114. [114]
     The relevant part of the summing up was in this passage:

“So I direct you that you cannot use the evidence of the sisters in combination unless you are satisfied that there is no real risk that the evidence is untrue by reason of concoction. No real risk that the evidence is untrue by reason of concoction. A real risk – a real risk is not a theoretical risk. It is a risk that is based on the evidence before you. Not one that is fanciful or a theoretical risk. That is talking about arisk based on the evidence before you. On that evidence you must be satisfied that there is no real risk of concoction.

You have the evidence from both girls maintaining that their description of what happened to them was, in fact, their own experience – what actually happened to them. And the evidence is that [M] and [P] did not talk together about these things until the 20^th of April 2019. After that, there were periods of couch talks at unspecified times. Before that, you know that [M] had complained to various people about some things. In August of 2017, [M] had spoken to her mother and her stepmother. I think her stepmother’s recollection of that was that [M] had told her that the defendant was always hugging her, grabbing her butt, and asking her if she loved him. The mother’s evidence about what [M] told her in 2017 was that he had been inappropriate, that he had looked down her top, that he had touched her bottom.

You also have the evidence that [M] talked to her two friends at school, and you have the Snapchat messages in 2018. Then you have [P]. [P] said that she told her mother things that were happening. The mother’s evidence was at some point earlier [P] had complained of the defendant touching her breasts in bed – this was the time when [P] – [P] wanted to come with her mother when she was collecting [M]. After that, in 2020 – April two – 20^th of April 2019, the two girls talked. [P] talked to her stepmother and made the writing – and they both spoke to the police in June. She said she made the writing the day before she went to the police.”^[115]

115. [115]
     In the second paragraph in that passage, the judge told the jury that “the evidence is that [M] and [P] did not talk together about these things until the 20^th of April 2019”, before reminding the jury that before that date, the jury “knew” that M had complained to her mother and stepmother and also to two friends at school. The judge added that, before 20 April 2019, P had told her mother. The effect of this summary of the evidence was that the jury were to understand that each complainant had spoken to others about what had happened to her, as early as 2017 in M’s case, whereas “the evidence” was that the girls did not talk to each other about the applicant’s conduct until 20 April 2019.
116. [116]
     In my respectful opinion, there were two deficiencies in that summary of the evidence. The first was that it suggested that the evidence proved that the girls did not talk to each other until April 2019, when that was in issue. The second was that it failed to refer to the most relevant part of the evidence of one of those school friends,^[116] which was that in 2018 she was told by M that the appellant had been sexually interfering with her little sister,P.^[117] It was not sufficient to tell the jury that they had the evidence that M talked to her two friends at school, because what mattered on this issue was that according to LN, as early as 2018, she was told about alleged offending also against P. If the jury believed the evidence of LN, they were likely to reject the evidence that the two complainants did not talk to each other about these things before April 2019. The evidence of LN raised more than a speculative possibility that the complainants had talked to each other before making any of their preliminary complaints.
117. [117]
     It is true that in another part of the summing up, the trial judge reminded the jury of the evidence of LN. But that did not avoid the risk that the jury considered the issue of collusion by an analysis in accordance with the judge’s directions on that issue.
118. [118]
     No redirection was sought by defence counsel. I am unable to agree that there was a forensic explanation for that omission.
119. [119]
     The issue of collusion was at the heart of the case, for if the jury was able to exclude a real risk of collusion, they were likely to be satisfied, by the similarity of the allegations made by the complainants, that there was no reasonable view other than that each complainant was telling the truth. The misdirection of the jury on this issue may have affected the verdicts. I would allow the appeal, set aside each of the convictions and order a retrial.
120. [120]
     BOND JA: Morrison JA has identified the various bases on which it was contended in the present case that this Court was bound to act to set aside the verdict on the ground that it was unreasonable and unsupported by the evidence. My judgement on that question accords with that expressed by Morrison JA and with which McMurdo JA agrees. Accordingly, like both their Honours I would reject the appellant’s argument in support of the second ground of appeal.
121. [121]
     As to the first ground of appeal, the extent to which the evidence of each sister supported that given by the other was a vitally important consideration in the trial. It was possible it assisted the jury to resolve the issues which might otherwise have concerned them arising from the various discrepancies and inconsistencies discussed by Morrison JA in relation to the second ground of appeal.
122. [122]
     In order to use each sister’s evidence in support of reaching a conclusion on the truthfulness and reliability of the other, the jury had to be persuaded that there was no real risk of collusion. But on that critical question, there was, as McMurdo JA has pointed out, a misdirection on the facts.
123. [123]
     The approach which must be taken to evaluating whether that misdirection occasioned a miscarriage of justice is clear. In R v SDQ Sofronoff P, with whom Morrison JA and Boddice J agreed, observed:^[118]

“The relevant principle is well settled. No miscarriage of justice will have occurred in a case like the present unless the appellant demonstrates that “it is reasonably possible” that the direction that was given, and the evidence that was led, “may have affected the verdict”.^[119]In considering these questions, the Court must have regard to the gravity of the error misdirection or significance of the inadmissible evidence as well as the strength of the case against the appellant.^[120]”

124. [124]
     I agree with McMurdo JA that it was reasonably possible that the direction may have affected the verdict. Given the importance of the question of risk of collusion, what was required of the trial judge was a summing up which identified the real issue and the evidence relevant to it, not one which identified an important evidentiary issue as though it was not in contest when it was. Whilst the evidence of the out of court statements made by M which contradicted her evidence did not prove the truth of those statements, they were very relevant as to the reliability of M’s evidence; if M’s evidence on this question was regarded as unreliable, then there was a possibility that the jury might have reached a different view on the risk of collusion. I do not think the subsequent reference to the relevant evidence (referred to in the reasons of Morrison JA at [30]) cured the problem. Indeed, by using the words “actually told her”, the trial judge emphasised that P actually told M for the first time in April 2019, thereby expressing a view consistent with her earlier summary which suggested the issue was not in contest.
125. [125]
     I agree with the orders proposed by McMurdo JA.