R v KBD[2023] QCA 99

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I have read the reasons of Bond JA.  I agree with those reasons and the order his Honour proposes.
2. [2]
   BOND JA:  On 28 July 2021, after a two-day jury trial in the District Court, the appellant was convicted of the following three counts of sexual offending:

   1. (a)
      Count 1:  that on a date unknown between 30 November 2003 and 1 March 2005, the appellant unlawfully and indecently dealt with the complainant, a child under 16 years with the aggravating circumstances that the complainant was under 12 years, was under the appellant’s care for the time being and the offence was a domestic violence offence.
   2. (b)
      Count 2:  that on a date unknown between 31 January 2005 and 31 January 2006, the appellant unlawfully and indecently dealt with the complainant, a child under 16 years with the aggravating circumstances that the complainant was under the appellant’s care for the time being and the offence was a domestic violence offence.
   3. (c)
      Count 3:  that on a date unknown between 31 January 2005 and 31 January 2006, the appellant raped the complainant with the aggravating circumstance that the offence was a domestic violence offence.
3. [3]
   The appellant, who represented himself, appealed against his conviction.  For reasons which follow, the appeal should be dismissed.

The ground of appeal

4. [4]
   The trial was a re-trial, the first trial having been conducted between 15 and 18 March 2021 but having been declared to be a mistrial after the jury had retired to consider their verdict.
5. [5]
   The sole ground of appeal advanced in the notice of appeal was that the first trial judge had erred in admitting into evidence a recording of the appellant taken by police on 20 July 2011.  The evidence concerned was that which is identified at [36] to [38] below.
6. [6]
   This was a reference to a ruling made by the trial judge in response to an application made by the appellant’s counsel for the exclusion of that evidence.  The application was made on the first day of the first trial after the jury had been empanelled.  It had been submitted that the police had failed to warn the appellant in accordance with s 431 of the Police Powers and Responsibilities Act 2000 and it would be unfair to admit the evidence.  The trial judge dismissed the application, finding that at the relevant time the appellant was not a suspect and not required to be cautioned and the admission of the evidence was not unfair.  No similar application was made at the second trial.
7. [7]
   The appellant did not develop any submission in support of that ground of appeal in his handwritten submissions before this Court.  Instead, amongst a number of irrelevant propositions, factual assertions and references to evidentiary material not before the jury or before this Court (and to which it is unnecessary to refer), the appellant advanced the proposition that the alleged offences were not credible.  In his written submissions before this Court counsel for the prosecution proposed to deal with the appeal on the basis that the true ground advanced was that the verdict was unreasonable and could not be supported having regard to the evidence.  In his oral submissions the appellant agreed that his argument should be treated in that way.  The appellant’s oral submissions consisted largely of further factual assertions and speculation, unsupported by any evidence led at trial or on appeal.
8. [8]
   Accordingly, the appropriate course, despite the wording of the notice of appeal, is to consider the appeal against conviction on the basis that the appellant contends that the verdict was unreasonable and cannot be supported having regard to the evidence.

The evidence at trial

9. [9]
   The evidence at trial was in narrow compass.  The Crown adduced evidence from the complainant, her sister, her mother and the investigating police officer.  It tendered a recorded version of a statement given by the appellant to police on 20 July 2011.  It additionally tendered a formal admission between the parties.  The appellant neither gave nor called evidence.

The complainant

10. [10]
    The complainant was born in July 1993.  She was 28 when she gave evidence.  She was nine when she met the appellant in around 2002.  He married her mother a year later.
11. [11]
    When she was 10 she expressed interest in becoming a massage therapist when she grew up.  She spoke with the appellant about massage therapy, during which he told her that he had massage books, although she never saw them herself.  He showed her some massage techniques which she practised on her mother.  In cross-examination it was suggested to her that she did so on the appellant also, but she did not recall that.
12. [12]
    The complainant said that the appellant did things to her on a number of occasions when she was little, but that she could not recall every time.  The four occasions she could recall occurred when she was between the ages of 10 and 12.  In cross-examination it was put to her that the appellant had never done anything sexually to her and she rejected that.

Count 1

13. [13]
    She was asked to speak about the first time she could remember.  That question elicited the evidence relied on in support of count 1.
14. [14]
    It was on a night when she shared a room with her sister, but she could not recall if her sister was there or not.  During that night, the appellant entered her room and indicated he was going to teach the complainant about massage.  He massaged her back before having her roll onto her back where he then massaged her shoulders before moving onto her breasts both above and beneath her singlet.  When she hesitated at that he told her it was ok and that it would make them firm and help them grow.  She did not recall any other conversation with him after the incident and could not recall how the incident had ended.
15. [15]
    She said that this occurred before her grandmother moved into a granny flat.  She later said that time occurred when she was “around 10 years old”.
16. [16]
    The complainant was cross-examined on the timing of the incident, a distinction being drawn between “bedtime” and “night-time”, and when she went to sleep.  That cross-examination went nowhere.  She agreed that at no time either during this or any other incident did the appellant seek her silence or encourage her not to complain.  It was put to the complainant that the event did not occur and there was never any massage effected in her bedroom, and she disagreed.

Count 2

17. [17]
    The complainant was asked whether there was another time that she specifically remembered.  That question elicited the evidence relied on in support of count 2.
18. [18]
    The next time she could remember was in the loungeroom.  She later said that she believed this event occurred in 2004.  Everyone had gone to bed except the appellant and her.  The appellant offered to massage the complainant and got her to lie on the floor and commenced massaging her back.  She began to fall asleep.  The appellant asked her if she was awake, and the complainant kept her eyes shut and did not respond.  The appellant then rolled the complainant onto her back, which woke her up.  He began touching her legs and stomach before placing his hand beneath her pants and touching her pubic area.  She remembered that she had her period and had a pad on.  When his hand touched the top of the pad, he removed his hand and left the room.
19. [19]
    She did not recall the appellant saying anything to her apart from asking her whether she was awake.
20. [20]
    During cross-examination, she said that once the appellant left she got up and went to bed in her room.  She agreed that she knew by this stage in 2004 the appellant’s conduct was inappropriate yet did not resist or make noise or make any immediate complaint to anyone.  She also agreed that what she had disclosed in conference to the prosecutor before the trial was that after the appellant left she remained asleep on the floor and eventually woke up and went to bed.  In response to the inconsistency being put to her she said that she couldn’t recall it very well.

Specific recollection of an uncharged act

21. [21]
    The next specific occasion she could remember occurred at a time when she had her own bedroom.  As a child the complainant liked to have her back tickled to put her to sleep.  Her mother used to do that from time to time.  She accepted that the appellant would also.  She recalled that she was in her bed in her bedroom.  The appellant was tickling her back to put her to sleep.  She said that she was lying on her stomach and had started to doze off when he asked if she was awake.  She did not say anything.  He moved his hands down her thighs and up between her legs and tried to roll her over.  She resisted being rolled over.  He then put his hand down the back of her pants and touched her vagina.

Count 3

22. [22]
    The next occasion the complainant could remember involved the events relied on in support of count 3.
23. [23]
    Count 3 also occurred at a time when she had her own bedroom.  She was in her bed in her bedroom.  On this occasion, the appellant started to tickle her back and the complainant had started to fall asleep.  The appellant then placed his hand in the back of the complainant’s pants, moving his hand to her genitals before inserting a finger into her vagina.  The appellant then took the complainant’s hand and placed it on his penis, held it there and then put her hand back and left the room.  She later said that that occasion was the last time he ever did anything to her.
24. [24]
    In a cross-examination which did not differentiate between the complainant’s evidence concerning the events recounted at [21] above and her evidence in support of count 3, it was put to the complainant that the events described did not happen and the complainant disagreed.  It was also put to her that the bed in which she slept was elevated and as a consequence if she was lying on her stomach and her arm were to swing off the bed, it could not have reached lower than the elastic band of the appellant’s underwear.  She rejected that and reiterated that her hand had touched his penis.  It was ultimately suggested that there was an event where her hand innocently fell and came into contact with the appellant’s boxer shorts as he massaged her.  She said she had no recollection of that happening.

Other uncharged acts

25. [25]
    Mention has been made that, at the outset of her evidence, the complainant said that the appellant did things to her on a number of occasions when she was little.  She could only recall four specific occasions, namely the occasions relied on in support of counts 1 to 3 and the occasion recorded at [21] above.
26. [26]
    After giving evidence on the occasion recorded at [21] above and the conduct charged as count 3, the complainant also said that the appellant touched her on her breast and pubic area “more than once” and that he inserted his finger into her vagina twice (including the occasion which was count 3).
27. [27]
    In cross-examination she was asked how many times the appellant had done something sexual to her.  She said a “handful of times” although she could only recount the four specific times she had referred to in her evidence.  She was asked whether she could say that there were more than those four or not, and she said that she could not recall.

Preliminary complaints

28. [28]
    The complainant recalled telling her grandmother first.  She was scared because she thought she had done something wrong.  Her grandmother told her to tell her mother but she said she just could not do that.  Next she told her sister, who said she would tell her mother on her behalf.  Then she eventually told her mother that the appellant had touched her.  She said that he had not put his penis inside her but otherwise did not go into a lot of detail.  These disclosures occurred in 2007.
29. [29]
    In 2011, when she was 17 and following an attempted suicide in 2010, the complainant went to youth counselling.  She disclosed the offending to her therapist and after some months eventually identified to the therapist that the offender was the appellant.  The police were then engaged.  After the police were notified broadly of the offending, the complainant spoke to police but did not tell them what the appellant had done to her and did not make a formal complaint.  She eventually made a formal complaint in 2019.

The complainant’s older sister

30. [30]
    The complainant’s older sister was called to give her recollection of the occasion in 2007 when her younger sister told her that the appellant had touched her.
31. [31]
    Her evidence was that she had a conversation with the complainant in 2007 in which the complainant first told her that a friend of hers had been touched by her stepfather.  After a bit of prodding by her sister, the complainant confessed that it was not a friend but it was her and that the appellant had “touched her inappropriately” and had “used his fingers” in the course of a massage.  The sister asked the complainant whether she had been raped by the appellant and the complainant said no, but that he had used his fingers.
32. [32]
    After that conversation, the complainant’s sister then told her mother what the complainant had told her.

The complainant’s mother

33. [33]
    In examination-in-chief, the complainant’s mother gave evidence that in 2007, she and the complainant had a conversation in which the complainant disclosed to her that the appellant had “been touching her breasts, supposedly teaching her massage”.  When asked if there anything else had happened the complainant simply said, “no”.
34. [34]
    In cross-examination, she placed the time when her mother moved into a granny flat as early 2005.  And it was after that time that the complainant moved into her own bedroom.  Before that time she had shared with one of her sisters.

The senior constable

35. [35]
    The senior constable was an officer within the Child Protection Investigation Unit.  He spoke with the complainant on 3 June 2011 after the reports made to police by the complainant’s therapist.  The complainant indicated she did not wish to make a formal complaint.  In cross-examination the senior constable explained that when he spoke to the complainant, she did not tell him any details about what had happened.  She did not give him anything he could act on.
36. [36]
    He spoke with the appellant on 20 July 2011 and recorded the conversation and the recording was played for the jury.

The recorded conversation

37. [37]
    The appellant was advised that police were not investigating a criminal complaint but were making child protection enquiries as there had been some “allegations made in relation to [the appellant]” and that there were concerns with other children being in the house.
38. [38]
    The appellant said the complainant had said she was interested in massage at the time and he had massaged her.  When asked if there was anything inappropriate, the appellant said there was “no sexual [contact] … [n]othing like that at all”.  He did say there was an incident where while massaging the complainant in her bed the complainant’s hand came into contact with “down that area”, referring to his boxer shorts.  He stated that that was as far as it went and that the incident had occurred years prior.

The formal admission

39. [39]
    An admission was made that on 7 September 2011 a Department of Child Safety Officer made the following note of the complainant’s disclosure to her:

“[The complainant] advised that the abuse did occur three times over a three month period when she was 11 years old.

[The complainant] stated to us that the abuse consisted of physical touching on the outside of her clothing and never involved an[y] penetration and that this is all that occurred.”

40. [40]
    It may be noted that it was put to the complainant during cross-examination that she had a conversation with the author of the note.  She recalled saying something like what is recorded in the first paragraph.  She did not recall saying either of the things mentioned in the second paragraph.

The Crown address to the jury

41. [41]
    Counsel for the Crown invited the jury to accept the evidence of the complainant as proving beyond reasonable doubt the alleged offending.  He suggested that the occasions on which the complainant had said she had no recollection should be regarded as indications that she was a truthful witness, and that otherwise her evidence addressing the offending against her was very clear.
42. [42]
    He addressed the delay between when the events occurred and when the complainant made the preliminary complaints to her grandmother, her sister and to her mother.  He said there was no “right way” for a victim to act.  The complainant was very young, and the appellant was “for all intents and purposes” her father.
43. [43]
    He addressed the preliminary complaint evidence and suggested that, though not detailed, it was generally consistent with the complainant’s evidence.  Discrepancies between different people’s memory of conversations were to be expected and were not particularly material.  Neither were the inconsistencies between the details of the preliminary complaint recorded in the formal admission and what the complainant had recalled about that conversation.  That the complainant had said to her sister she had not been raped was explicable on the basis that she probably understood the term to be referring to sexual intercourse without consent.  He explained that the jury could use the preliminary complaint evidence to assess the complainant’s credibility.
44. [44]
    He noted that although the appellant had clearly denied to police any inappropriate contact, the fact that he had brought up what he had said was an innocent incident but which bore striking similarity to part of the complainant’s allegation in relation to count 3 was significant.
45. [45]
    He addressed the uncharged acts to which reference has been made above and suggested that the Crown relied on that evidence as demonstrating the appellant had a sexual interest in the complainant and was willing to act on that interest.  The Crown also relied on the evidence as putting the three charged acts in their context.

The defence address to the jury

46. [46]
    Counsel for the appellant suggested the following discrepancies in the evidence of the complainant:

    1. (a)
       First, he suggested that there was imprecision in the evidence as to the dates on which the offences were said to have occurred.
    2. (b)
       Second, he suggested that the complainant’s evidence both as to the charged and uncharged acts was inconsistent with the preliminary complaint witnesses.  Of particular significance was that she had told her mother nothing had occurred beyond him touching her breasts.
    3. (c)
       Third, he suggested that there was an inconsistency between the complainant’s evidence and what she told the Child Safety Officer, as revealed by the contents of the formal admission.
47. [47]
    He invited the jury to use those matters to assess the credibility of the complainant.
48. [48]
    He suggested that the events described by the complainant were of conduct which was unlikely in that she said she was falling asleep; there was no conversation said to have occurred between them; no objection by the complainant; no request by the appellant that the complainant tell no one; the events were said to have occurred where other people were in the house and could have woken; and there was no logic in the conduct suddenly stopping when the complainant had never said anything to the appellant about it.
49. [49]
    He addressed the jury on the presumption of innocence.  He said that the appellant’s case was that no inappropriate touching occurred at all.  His statement to the police should not be regarded as an admission but merely a statement by someone who did not have a guilty state of mind.

The summing up

50. [50]
    The summing up was unremarkable.  Given the reliance placed on uncharged acts, it may be noted that the trial judge gave a direction consistent with that contained in the benchbook as to the use the jury could make of the evidence.  No complaint was made about that direction or any other part of the summing up.
51. [51]
    The primary judge carefully summarised the other relevant evidence and the arguments of counsel, including the material on which the appellant’s counsel had suggested gave rise to relevant inconsistencies and discrepancies.

Consideration of the appeal ground

52. [52]
    The ground of appeal requires this Court to consider whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, that question being one of fact which the court must decide by making its own independent assessment of the evidence (see M v The Queen (1994) 181 CLR 487 at 493 and Dansie v The Queen (2022) 403 ALR 221 at 224).  I apply the principles summarised in R v Mirotsos [2022] QCA 76 at [68].
53. [53]
    Having carried out that assessment, I find that it was well open to the jury to be satisfied of guilt beyond reasonable doubt.  My assessment of the totality of the evidence does not leave me with a reasonable doubt as to the appellant’s guilt.  The case turned entirely on the complainant’s evidence.  The complainant’s evidence supported the three counts.  It was open to the jury to accept that evidence as proving the appellant’s guilt beyond reasonable doubt.
54. [54]
    Before the jury counsel for the appellant had raised such matters as could fairly have been raised with a view to persuading the jury to the contrary.  It was certainly open to the jury to reject the matters raised as a basis for not accepting the evidence of the complainant beyond reasonable doubt.  To my mind, such discrepancies and inconsistences as existed in the evidence were all relatively minor and capable of being disregarded by the jury due to, as counsel for the prosecution submitted, “the effluxion of time and memory”.  They did not give rise to the conclusion that there was a significant possibility that an innocent person had been convicted.
55. [55]
    There was nothing which the appellant advanced before this Court which could properly give rise to a contrary view.  As previously mentioned, he wrote and said various things which were not supported by the trial record and of which there was no evidence before this Court.  Those matters may be ignored.
56. [56]
    I would order that the appeal is dismissed.

57. [57]
    BEECH AJA:  I agree with Bond JA.