R v AGJ[2024] QCA 124

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  On 27 November 2020, the appellant was convicted, after a trial, of 28 counts against two of his daughters, fifteen of which were sexual assaults.^[1]
2. [2]
   Of the counts charged, all but three^[2] were charged as domestic violence offences.
3. [3]
   The offences of which he was convicted were as follows:

   1. count 2 - maintaining a sexual relationship with a child;
   2. count 3 - common assault;
   3. count 4 - sexual assault;
   4. count 5 - assault occasioning bodily harm;
   5. counts 6, 7, 16, 17, 20, 21, 24-26, 30 and 31 - common assault;
   6. counts 9, 10, 12, 14 - sexual assault;
   7. counts 13, 22, 27, 28 and 29 - indecent treatment of child under 16, lineal descendant, under care;
   8. counts 15, 19 and 23 - rape; and
   9. count 18 - indecent treatment of child under 12, lineal descendant, under care.
4. [4]
   The original grounds of appeal as framed in the Amended Notice of Appeal filed 18 December 2020 were that the trial judge erred by:

   1. ground 1: limiting the scope of the cross-examination on the recall of each complainant for further cross-examination;
   2. ground 2: not discharging the jury after the Crown Prosecutor's opening address; and
   3. ground 3: allowing similar fact evidence.
5. [5]
   At the hearing of the appeal on 9 April 2024, leave was granted to raise a fourth ground:

“A miscarriage of justice was occasioned by the Jury being permitted to have Exhibit 15 to consider in the Jury room, without the contradicting cross-examination and without an appropriate direction not to place undue weight on it.”

6. [6]
   On 9 April 2024, Mr O'Brien and Mr Boyd of counsel appeared on a pro-bono basis for the appellant on ground 4 only.  The Court was informed that the appellant intended to argue the original three grounds himself.
7. [7]
   At the completion of submissions on ground 4, the appellant commenced his submissions.  It became apparent that he wished to address new grounds concerned with the failure of his lawyers to follow his instructions at the trial, and in particular to permit him to give evidence.  As the Crown had no notice of the new ground, nor had the appellant’s proposed affidavits been provided, orders were made for the filing of an amended Notice of Appeal, an application to adduce further evidence, further affidavit material and further submissions, and for the appeal to resume at a later date.
8. [8]
   In his Amended Notice of Appeal filed 22 April 2024, the appellant abandoned grounds 2 and 3 above, and sought to raise:

   1. ground 1: limiting the scope of the cross-examination on the recall of each complainant for further cross-examination;
   2. ground 4: in the terms already argued at the first hearing; and
   3. ground 5: a miscarriage of justice was occasioned by the appellant’s trial lawyers failure to follow his instructions and to call:—

a.  the appellant to give evidence in his trial, and

b.  further defence witnesses who the appellant instructed to be called.

9. [9]
   On the resumption of the appeal Mr O'Brien and Mr Taylor of counsel appeared on a pro-bono basis for the appellant in a limited way.  That is, written submissions had been filed to assist the appellant on the grounds he intended to argue, and counsel conducted the cross-examination of Ms Cuthbert and Ms Holland, respectively the appellant’s trial barrister and solicitor.  The appellant appeared on his own behalf in so far as oral submissions were concerned on grounds 1 and 5.

Consideration - ground 1 - limiting the scope of further cross-examination

10. [10]
    This ground relates to the primary judge’s decision upon an application made by counsel for the appellant, that YD and OS be further cross-examined.
11. [11]
    The reasons advanced for the further cross-examination were that the appellant’s case had not been put to the witnesses and that he had thereby been denied a fair chance of acquittal.^[3]
12. [12]
    The primary judge ruled that cross-examination was not permitted at large but restricted to certain topics advanced by the appellant’s counsel and limited to 30 minutes.^[4]  As identified in the outline by counsel for the appellant at the pre-trial hearing, those topics were:^[5]

    1. to put full instructions with respect to each count;
    2. to cross-examine as to inconsistencies within each complainant’s interviews admitted under s 93A of the Evidence Act 1977 (Qld);
    3. to cross-examine about a motive to lie;
    4. to cross-examine about the possibility of collusion in concoction; and
    5. to put instructions from other defence witnesses.
13. [13]
    During the oral submissions on the application, the focus of the proposed cross-examination was narrowed to issues concerned with alleged concoction and collusion by the complainants.  The appellant’s counsel identified that as an issue of “great significance” and the primary judge suggested that “it may be best in the first instance to concentrate on that point”.^[6]  Then, during the course of submissions the appellant’s counsel said:^[7]

“And the collusion concoction is so fundamental in these circumstances, it’s so fundamental to raise, that I do make the submission that [the appellant] is denied a fair chance at acquittal if he cannot raise it properly and, by doing that, my submission is it does involve cross-examining the complainants about it.”

14. [14]
    As the prosecutor accepted, there was an overlap between the concoction and collusion issue and those relating to motive to lie and inconsistency in the police interviews.^[8]
15. [15]
    Having explored the issue of concoction and collusion, his Honour asked about the points in paragraphs 2(a) and (e) of the outline.^[9]  They were: (a) to put full instructions with respect to each count, and (e) to put instructions from other defence witnesses.
16. [16]
    Counsel then identified the points that she sought to raise under sub-paragraph (a), that had not been put in the pre-recorded evidence: (i) the presence of a hole in the bathroom wall; and (ii) that the rubbing of the appellant’s legs as a result of poor circulation was commenced by an older daughter and suggested to the complainants by her.^[10]
17. [17]
    As to sub-paragraph (e), counsel raised: (i) the nature of the relationship with some of the witnesses, that they would be cared for by them, that they would have discussions on personal matters, and the opportunity to make a complaint was not used; and (ii) the nature of the appellant’s discipline of the children.^[11]
18. [18]
    During the course of submissions by the prosecutor, the primary judge invited any submission on cross-examination on the issues in sub-paragraphs (a) and (e).  The prosecutor opposed leave in that respect.^[12]  In the course of what followed the primary judge indicated he was “not so concerned about” sub-paragraph (a).^[13]  One reason for that was because the allegation that the appellant looked through a hole in the bathroom wall only came from a preliminary complaint witness, and not from the complainants.^[14]  However, that still left open a submission as to inconsistency between the interviews and what was said to the preliminary complaint witness.^[15]  Counsel for the appellant conceded that as the evidence stood, the point as to inconsistency with the interviews was already available.^[16]
19. [19]
    His Honour said he was also “not so concerned about the rubbing of the legs”.^[17]
20. [20]
    Whilst the order noted on the coversheet of the decision listed the matters as set out in paragraph 2 of the outline for the appellant’s counsel, the primary judge had, in truth, limited the cross-examination so that it was to be concerned with issues of concoction and collusion.  So much appears from the passages referred to above and from the oral reasons of the primary judge when delivering the orders on the application.  His Honour said:^[18]

“In each instance, the further cross-examination will not be permitted at large, but only as to questions relevant to the topics identified at paragraph 2 in the defendant’s written submissions on this application and as clarified in oral submissions, and will be limited in duration to 30 minutes for each, subject to further order of this Court.”

21. [21]
    Further, the reasons delivered also reveal that oral argument had limited the scope of the cross-examination:^[19]

“[19] It is unnecessary to discuss any of the further detailed examples of potential further cross-examination points discussed in submissions, because and as became common ground upon the hearing of this application, the most substantial of the contentions made for the defendant was in respect of the extent of prior cross-examination about the possibility of collusion and concoction of allegations by the complainants. And it is to be noted that it was appropriately conceded by the respondent that this issue, as developed upon the application, is related to the issue as to motive to lie and as further elaborated, to some extent to the issue as to inconsistencies arising out of the recorded evidence of the complainants.”

22. [22]
    The balance of his Honour’s reasons were concerned with the issue of concoction and collusion.  His Honour concluded:^[20]

“[27] However, and particularly having regard to the evident sense of potential oppression that may be involved, such a conclusion does not mean that there should be allowance of a fresh and full cross-examination of the witnesses. Given the accepted interconnection between some of the issues which were identified in the application and the stated reliance on some material obtained since the prior pre-recording, the limitation imposed was not to go further than the proposed topics, except as to duration, in order that the further cross-examination may be properly prepared and focused to the important points to be engaged with each witness. Therefore and subject to further order of the court, the further cross-examination of each witness was limited to 30 minutes.”

23. [23]
    In my view, his Honour’s approach from the point of view of legal principle was unimpeachable.  The primary judge referred to R v Marshall^[21] for the following propositions:^[22]

    1. the norm for cross-examination of child witnesses was that it occur on one occasion;
    2. one could depart from the norm if the child witness could be recalled under the general law and if the interests of justice require the making of the order;
    3. more than one cross-examination should occur only where a case has been shown that the preponderance of the interests of justice warrant that course; and
    4. an obvious case where these conditions would be satisfied would arise where the case for the defence has not been put to the accused in the pre-recorded cross-examination.
24. [24]
    His Honour said:^[23]

“[11] The passage from Marshall particularly relied upon for the applicant, is not to be taken as indicating that it will always be necessary, or desirable, to have such a witness recalled simply because of some earlier failure to formally suggest what is apparently the defendant’s case or proposition. Neither is the position upon such an application to be entirely equated with the situation of the examination of forensic decisions made by counsel in respect of a completed trial process and where the question is then whether any miscarriage of justice has objectively occurred.

[12] Neither, in respect of the provisions of s 21AN of the Evidence Act, are there any generally identified restrictions as to the recalling of any witness, child or adult, other than perhaps pragmatic considerations or those relating to prejudicial effect upon the position of another party. It may be observed that the exercise of discretion as to the recall of witnesses has been generally identified as being premised upon the second consideration in s 21AN and as to what is considered to be in the interests of justice. As may be noted, it was observed in R v Masters:

‘This court has said that generally speaking, a judge should always accede to a request to have a witness recalled for cross examination upon a point of substance which has been overlooked - however incompetently - unless real and incurable prejudice is created for the party calling that witness: Fleming (unreported Court of Criminal Appeal, NSW, Hunt, Campbell and Matthews JJ, 12 December 1989), p 9.’”

25. [25]
    After a review of authority and text references, the primary judge held that, consistently with R v Marshall, further cross-examination should only be allowed where the preponderance of the interests of justice warrant this course.^[24]  Then, having examined some potential cross-examination points, the primary judge continued:^[25]

“[19] It is unnecessary to discuss any of the further detailed examples of potential further cross-examination points discussed in submissions, because and as became common ground upon the hearing of this application, the most substantial of the contentions made for the defendant was in respect of the extent of prior cross-examination about the possibility of collusion and concoction of allegations by the complainants. And it is to be noted that it was appropriately conceded by the respondent that this issue, as developed upon the application, is related to the issue as to motive to lie and as further elaborated, to some extent to the issue as to inconsistencies arising out of the recorded evidence of the complainants.”

26. [26]
    His Honour then noted that where there was joinder of allegations by multiple complainants, collusion/concoction of allegations was a potentially important, if not central, issue.^[26]  Having examined the state of the case on that issue as put in the cross-examination of the complainants so far, and the prospect of further evidence as to that issue, his Honour expressed his conclusion in these terms:^[27]

“[25] In respect of such a potentially critical issue, the problem created by an absence of any meaningful cross-examination on the issue of potential collusion, concoction or suggestion is not easily to be dismissed as in the nature of a reasonable forensic choice upon the basis of avoidance of the prospect of damaging evidence on the issue. Whilst and as the passage from the evidence of the complainant K itself exemplifies, the cross-examination of her had been troubled by some difficulty in phrasing questions in order to obtain a response from her, such a difficulty is not necessarily insurmountable. And the topic was not broached at all with the complainant A.

[26] In respect of such a critical issue, the interests of justice are not enhanced by the absence of meaningful cross-examination, whether viewed from the perspective of the prospect of acquittal of the defendant, or the fairness of the trial in terms of the administration of justice and particularly in the desirability of the proper engagement of issues. And where the means of remediation of the problem are reasonably available, the preponderance of the interests of justice warrants doing so.

[27] However, and particularly having regard to the evident sense of potential oppression that may be involved, such a conclusion does not mean that there should be allowance of a fresh and full cross-examination of the witnesses. Given the accepted interconnection between some of the issues which were identified in the application and the stated reliance on some material obtained since the prior pre-recording, the limitation imposed was not to go further than the proposed topics, except as to duration, in order that the further cross-examination may be properly prepared and focused to the important points to be engaged with each witness. Therefore and subject to further order of the court, the further cross-examination of each witness was limited to 30 minutes.”

27. [27]
    There are several matters to note about the decision.
28. [28]
    First, the decision is a discretionary one.  Unless specific error can be demonstrated such a decision is susceptible to correction only where an error of the type in House v The King^[28] can be shown.  That is to say, one must show that the primary judge: (i) acted upon a wrong principle, or (ii) allowed extraneous or irrelevant matters to guide or affect him, or (iii) mistook the facts, or (iv) did not take into account some material consideration.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, then error may be inferred.
29. [29]
    None of those factors can be shown here.
30. [30]
    Secondly, the relief was granted as was sought by the appellant’s counsel in respect of the most important issue, concoction and collusion, and the intersection of that issue with motive to lie and inconsistency in the interviews.  In the written submissions in support of the application, counsel listed the topics in paragraph [2] of the outline and they were refined during the oral submissions.^[29]  The orders were in those terms as clarified during submissions.
31. [31]
    Thirdly, in terms of the time allowed, i.e. 30 minutes per complainant, the primary judge announced that ahead of formally delivering the reasons.^[30]  The time limit was expressed as “30 minutes for each [complainant], subject to further order of this Court”.^[31]  Neither counsel sought to debate the restriction, either then or at any subsequent time. In any event, that time limit was expressly subject to further order.  If further time had been required, it could have been sought at the further cross-examination.
32. [32]
    At the resumed hearing to conduct the further cross-examinations, the primary judge explained that the time limit was there “so it’d be focussed and directed on the real issues”.  His Honour added, “And subject to further order we’ll see how things go”.^[32]
33. [33]
    As it transpired, OS was cross-examined for 32 minutes and YD was cross-examined for 15 minutes.  There was no application to extend the times.  A review of the cross-examination shows that the appellant’s counsel covered all of the topics that were within the order.  Thus with OS:

    1. relationships with witnesses whom I will refer to as LL, BK and DL, no showing of marks from being hit, and no mention to them of the allegations;^[33]
    2. whether she told another that there was a hole in the wall, OS denying she had;^[34]
    3. the threat to send her to another school because of her relationship with a boyfriend;^[35] and
    4. concoction and collusion.^[36]
34. [34]
    And, with YD:

    1. relationships with LL, BK and DL, no showing of marks from being hit, and no mention to them of the allegations;^[37]
    2. the threat to send OS to another school because of her relationship with a boyfriend;^[38] and
    3. concoction and collusion.^[39]
35. [35]
    There is no reason to conclude that the primary judge’s discretion to permit cross-examination miscarried, nor any basis to find that the primary judge impermissibly limited that cross-examination.
36. [36]
    This ground fails.

Consideration – ground 4

37. [37]
    Exhibit 15 consisted of 14 photographs of handwritten notes (totalling 16 notes) made by YD.
38. [38]
    The notes are of varying length.  Five are dated, and three start with “today” or “tonight”, which (the appellant accepts) indicates that they were contemporaneous with the events to which they refer.  Others appear to be written after the incident they purport to record, and the final page is written like a statement or letter, signed “sincerely [YD]”.
39. [39]
    Some of the notes include references to sexual acts:

“Dad complains that I don’t give him hugs in bed! It’s yuck and he doesn’t even care about me he just makes me scratch and rub his parts!^[40]

Recently dad has had a need for sexual attention he believes that he has the right to sexually insult myself and [OS] by starring [sic] at our private parts. Dying to trick us into getting into bed with him and touching our bits it is unacceptable but we can’t say a thing.”^[41]

40. [40]
    The photographs were tendered by the Crown during the initial section 21AK pre-recording of YD’s evidence.^[42]  The appellant accepts that they were admissible pursuant to section 93A of the Evidence Act.^[43]
41. [41]
    The first five notes are dated from 23 January 2016 to 6 March 2016.  It was common ground at the trial that the notes were made before police involvement.
42. [42]
    In her evidence YD said that she wrote the notes while living with the appellant and kept them in an old wooden pencil box.^[44]  She agreed that the notes were true records of the things described as happening in them.^[45]  She said the things described in her notes were true and happened to her.  The dates on some notes were put on “on the day that it happened and the date that I wrote it”.^[46]
43. [43]
    The prosecutor tendered the 14 photographs as a bundle, telling the trial judge, “I understand there’s no issue with that”.^[47]  Defence counsel did not contradict that statement, nor object to the tender.
44. [44]
    In cross-examination, YD said that she had “chucked out” some notes but kept those that were in Exhibit 15.^[48]  She described how she had created the notes, by ripping off a piece of paper, writing the note and sometimes using scissors to create scalloped edges.^[49]

The first pre-recorded hearings

45. [45]
    Because there is no ground that alleges the verdicts were unreasonable, the relevant aspects of the first pre-recorded evidence can be summarised briefly.
46. [46]
    OS identified a number of photographs of the inside of the house, where rooms and other things were, and family members.  She said:

    1. she agreed that the appellant had various medical conditions including diabetes, blood circulation problems and a hernia, but denied that he could not lift things around the house;^[50]
    2. she could recall telling police about her boyfriend and the fact that the appellant was upset that she was showing affection to the boyfriend;^[51] but she could not recall the appellant threatening to change her school;^[52]
    3. when they were placed in care she and YD were together; she prepared a journal but was not sure if YD did;^[53]
    4. the appellant was a strict disciplinarian and most of his punishments involved violence such as hitting across knuckles, wrists and hip;^[54]
    5. when it was put to her that the only time the appellant applied physical discipline was to hit across the back of the hands; she said that was false;^[55]
    6. when it was put to her that she had never seen the appellant naked, contrary to what she told police; she said that was false;^[56] and
    7. when it was put, she denied that the appellant had never touched or dealt with her in a sexual way.^[57]
47. [47]
    YD recalled that she had spoken to police twice, affirmed the contents of the police recordings, identified photos of the house, explained where things had been in the house, and explained the photos that became Exhibit 15.  In cross-examination:

    1. she agreed that the appellant had difficulty lifting things because of his medical conditions;^[58]
    2. she could not recall the appellant saying that OS was going to go to a different school, but recalled him threatening to send them back to their mother;^[59]
    3. as to the notes in Exhibit 15, YD explained how they were created:^[60]

“All right. Now, the notes that you’ve just been shown photographs of, they were just a few of a lot of notes that you penned to yourself. Is that correct?---Yes. I chucked out some of the other ones, but those are a few that were left in there.

A few that were left in there. And where do you say you left them?---In a wooden box with – that used to have pencils in a drawer in that wooden box.

And how were those notes created? Can you just describe for me how you would create a note?---I would rip a piece of paper and I would write the note.

So you’d rip a piece a paper first and then write the note on the piece of paper?---Yes.

How many pieces of paper would have been used to create the notes?---Per note or with all of the notes?

Well, put it this way. We’ve seen a number of them. How many pieces of paper would you have used to create the notes that you’ve seen?---I’m not sure.

Some of them have curled edges where you’ve cut little scallops – shapes into the edges. Do you remember seeing those?---Yes.

How did you create those notes?---With scissors.

Before or after you’ve written the note?---After.

You’d cut around the edges, would you?---Yes.

Some of the notes, would they be able to be put together like a jigsaw?---I don’t think so.”

4. she agreed the appellant had diabetes and a hernia;^[61]
5. it was put to her, and she denied, that the only time the appellant smacked her was on the back of the hand;^[62]
6. it was put to her, and she denied, that the appellant had never touch or dealt with her in a sexual way;^[63]
7. she could not recall a time when she was taken for treatment of an eating disorder;^[64] and
8. she agreed that in 2015 she had self-harmed, by banging her head and scratching her skin.^[65]

The second pre-recorded hearings

48. [48]
    Before the complainants were cross-examined for a second time there was a pre-trial hearing.  In the course of the pre-trial hearing, counsel for the appellant made it clear that there would be no challenge to the joinder of the indictments, and that was a tactical decision that had been taken so that mileage could be made out of the concoction and collusion aspect:^[66]

“Now, your Honour, the decision not to bring an application to sever an indictment, you might style that as a tactical decision, and it’s – one reason why defence would do that is to raise the possibility of concoction and – of collusion and concoction.

HIS HONOUR: It’s the very reason why I sought to raise that issue at the outset, to make sure that that’s not where it was heading after we deal with this issue.

MS CUTHBERT: No. It’s not where it’s heading.

HIS HONOUR: Because that would be putting the cart before the horse.

MS CUTHBERT: It would, and it would be productive of a fair bit of frustration to everyone, I imagine, your Honour. And the collusion concoction is so fundamental in these circumstances, it’s so fundamental to raise, that I do make the submission that [the appellant] is denied a fair chance at acquittal if he cannot raise it properly and, by doing that, my submission is it does involve cross-examining the complainants about it.”

49. [49]
    Both OS and YD were cross-examined a second time, a little more than a year after the first.
50. [50]
    Relevant aspects of the evidence of OS were:

    1. she had told police that the appellant would hit her, sometimes so hard it would leave a mark, when he was angry; she replied that it would leave redness;^[67]
    2. she agreed she told police that she had been hit on the face, hands and body;^[68]
    3. she agreed she knew a named person (LL) who visited regularly and with whom they had various discussions; it was put to her that she did not tell LL about the hitting or sexual interference; she replied that she was not sure if she did or did not;^[69]
    4. she denied an incident put to her, when she attempted to run away from home; she said she tried to run away “because of how he’s been treating us”;^[70]
    5. it was put to her that she told LL (who offered to help her if she left), that she wanted to stay with the appellant; she denied that, saying she did not remember;^[71]
    6. she agreed she knew a named person (BK) who visited regularly and looked after them when the appellant was absent; they had various discussions with BK; it was put to her that she did not tell BK about the hitting or sexual interference; she replied that she felt comfortable with BK but did not feel that she could speak about what had been going on, and that the appellant said they were not to tell anyone; she said she and YD felt scared to do anything about it;^[72]
    7. she said she could not recall, another named person (DL);^[73]
    8. she denied she told a community education officer that the appellant watched them in the shower through a hole in the wall; she said she told that person that the appellant kept the door open and would watch them in the shower, and shaved her vaginal area; she could not recall if she told police that;^[74]
    9. she could not recall having discussions with the appellant about spending too much time with her boyfriend, but could recall the appellant telling her to apply herself harder at school; she was not sure if he threatened to send her to a different school; she said things were only bad when her boyfriend was over because the appellant did not like her holding hands with her boyfriend or them kissing;^[75]
    10. she said she wanted her independence and to be able to spend time with her boyfriend;^[76] she could not recall, when it was put to her, that the appellant threatened to send her to a different school, and told her not to see her boyfriend again;^[77]
    11. it was put to her that she made up the allegations against the appellant because she wanted to get away from him; she replied, “No, no, I did not make it up”;^[78]
    12. it was put to her that she got YD to back her up; she replied, “No, no. This is all the truth”; she denied making it up or concocting things with YD; she reiterated that her leaving was her own idea, because YD “didn’t know what was going on. I did this on my own decision to get some help”;^[79] and
    13. she agreed that when they were put into care she and YD made notes in their separate journals; she denied that they put their heads together to concoct the allegations; she explained:^[80]

“Like I said, … [YD] and I only wrote what were our experiences, but with the similarities we had we did due to we were both there. That’s how we knew. … we … knew what happened to each other because [indistinct] … We discussed similarities like hitting, the foods we’ve had, the situations we were both in together or the situations where it was similar, … like, when we were in the room, like, before we left Dad … [YD] and I only discussed what was in care was the food, the hittings, the situations we were in together, … we knew … what happened to each other is due to [YD] and I spoke about it a little bit while in care of [X].”

51. [51]
    In re-examination OS said that their carer had suggested they make notes in a journal because they were really upset.  She and YD had separate rooms while in care.  She said that she did not show YD any notes concerning sexual matters and YD did not show her any note of that kind.^[81]
52. [52]
    The relevant aspects of YD’s evidence were as follows:

    1. she agreed that she told police that the appellant would hit her when he was angry, sometimes with his hand or a belt or a stick; she agreed she had said that those hits would sometimes leave a mark or bruise on her head, face, legs, hands and body;^[82]
    2. she agreed she knew LL who visited regularly; she denied having discussions with LL about periods because, she said, she was too young and LL did not  speak to her about that;^[83]
    3. she could recall BK, their babysitter when the appellant went to work with the SES; she agreed she did not tell BK about the hitting or sexual interference or show her the bruises; YD said she “didn’t really talk to anyone about anything”;^[84]
    4. she said she could not recall DL;^[85]
    5. she was asked about an occasion when, it was put, the appellant told OS that she was to be sent to a different school; she said she could not recall any of what was put to her in that regard;^[86]
    6. she agreed the appellant was not happy about OS’s boyfriend, wanted to keep them apart, and did not like them kissing or touching each other; she did not know if that caused OS to be angry or caused fights between OS and the appellant;^[87]
    7. she denied that she and OS had concocted the allegations;^[88]
    8. she denied that when she and OS went into care they concocted the allegations when they were writing in their journals;^[89] and
    9. she denied that they made up the allegations with OS because OS wanted to get away from the appellant:^[90]

“No. [OS] wanted to get out because she didn’t like how Dad was treating her, and we didn’t put our heads together to make this up. Everything is true.”

53. [53]
    In re-examination, YD explained why she had said that she did not really talk to anyone:^[91]

“I was too scared to tell anyone about what happened at home because my father threatened myself and [OS] what would happen he would put us into – he would get rid of us and send us back to Mum’s.”

54. [54]
    The appellant’s submission is that the jury had Exhibit 15 in the jury room but were not warned against placing undue weight upon it, nor were they directed to consider them in the context of the cross-examination.^[92]  Relying on R v BEC^[93] and Gately v The Queen,^[94] it was submitted that there was a risk the notes would have been given disproportionate weight by the jury, warranting the suggested directions.
55. [55]
    There are several reasons why, in my view, the submissions should be rejected.
56. [56]
    First, the notes were tendered without objection and no direction of the kind now suggested was sought by very experienced trial counsel.  The reason for that was obvious.  The notes were seen by defence counsel as strong evidence of concoction by YD and OS.  A direction of the kind now proposed would have potentially eroded the impact of the notes as being concocted.  This was not a case where it can be said there was no rational forensic justification for defence counsel’s approach.^[95]
57. [57]
    Secondly, the failure to seek a direction such as that now proposed has to be seen in light of the fact that the draft summing up was provided to, and discussed with, the parties.^[96]
58. [58]
    Thirdly, in address, defence counsel emphasised the elements that showed concoction:

    1. witnesses like LL and BK were alive to issues and risks concerning children, and saw YD and OS a lot but did not see any injuries;
    2. LL’s evidence of offering OS a way out could be accepted as OS would hardly have declined the offer if things were as she said;
    3. by reference to YD’s evidence, that she was making it up;
    4. the way the journals were written showed concoction;
    5. the threatened transfer of OS to another school triggered the concoction;
    6. the notes in Exhibit 15 had features that showed they were concocted:^[97]

“I make this submission: the scalloped edges and the different coloured pens are the sorts of features that little girls use when they’re doing a project with pen and paper. Whether it’s making cards or – or you know, whatever. This is a project for [YD]. My submission to you is that these are not statements of actual physical and sexual violation that she is suffering, but these are part of a project that she and [OS] have embarked on to get out of Dad’s house, to get away from Dad who doesn’t give [OS] her independence to be with [the boyfriend], and who doesn’t respect her opinions. To get away from Dad so that [OS] and [the boyfriend] can be together.”

7. on occasions OS forgot what she was talking about or what she had previously alleged.

59. [59]
    The whole defence case was that OS and YD had fabricated the allegations.  Central to that case was that the notes were self-evidently concocted.  That point was made forcefully to the jury and defence counsel would not have wished to diminish the force of that submission by a direction not to give undue weight to them.
60. [60]
    Fourthly, by contrast the Crown case was that the notes clearly were not concocted.^[98]  If they had been concocted for the purpose of getting the appellant, it was said: (i) they would have been referred to by YD at least in her interviews, and she made no reference to them; or (ii), she would have had them with her when she saw the police on 3 February 2017.  The possibility of the notes being concocted was described as an “absurd implausibility”.
61. [61]
    Fifthly, this case is not like BEC or Gately.  In each of those cases the relevant document was akin to a statement of evidence.  In BEC it was an email prepared by a psychologist and sent to police.  It contained “a concise statement of the complainant’s allegations”.^[99]  In Gately it was the video of the pre-recorded evidence.  This case is different.  Only two of the 16 notes mentioned sexual matters, and even then not in the form of a statement.
62. [62]
    Sixthly, in a case where the notes only dealt with the allegations in a very limited way, and were at the heart of the concoction debate, it is difficult to understand how the failure to give the further direction led to a miscarriage of justice.
63. [63]
    This ground fails.

Consideration – ground 5

64. [64]
    This ground centres on the appellant’s contention that his trial lawyers did not follow his instructions to call the appellant himself and further defence witnesses who the appellant instructed to be called.
65. [65]
    The additional witnesses to which he refers are: (i) someone from Cherbourg Hospital to tender a letter referring to his medical conditions; (ii) LL, a witness who did give evidence at the trial; (iii) RAH; (iv) PQR (another of the appellant’s daughters and the older sister of OS and YD); (v) CHM, by a statutory declaration as he is deceased; (vi) WSR; and (vii) GRB and Mrs GRB.

The hospital letter - doctor

66. [66]
    The letter is dated 29 October 2020.  It lists a series of medical conditions, some of which date from 2019, and medications.  It ends with the statement: “It is possible that these medical conditions and medications may cause erectile dysfunction”.  The appellant would seek to rely on it to establish that he had erectile dysfunction and therefore could not have committed the rapes the subject of counts 15, 19 and 23.
67. [67]
    It establishes neither thing.  It notes erectile dysfunction as part of a history, without specifying how that manifested itself.  Self-evidently that note is a self-report to the practitioner.  It then merely says that the conditions and medications may cause erectile dysfunction, not that it does in his case.
68. [68]
    As to this contention, defence counsel at the trial, Ms Cuthbert, deposed that a forensic decision was made to not adduce that evidence:^[100]

“32. This decision was made for several reasons.

33. First, to the best of my recollection, Ms Holland was not able to arrange a telephone conference with the doctor, so I was not clear on what his evidence would be.

34. Second, I presumed that the “erectile dysfunction" which appears in the Medical History of the document was a subjective report from the patient and thus of limited probative value.

35. Third the doctor’s opinion, appearing at the end of the document above the signature block, went no further than erectile dysfunction being possible on the current pharmaceutical regime and thus of limited probative value.

36. Fourth, neither of the complainants’ evidence made mention of seeing the applicant with an erection. Each complainant did give detail of the applicant rubbing his penis on and around their vulvas. I formed the view that these details could be easily interpreted by a jury as an impotent man attempting to gain an erection by the vulval rubbing.

37. I formed a firm view that the applicant would not be well served by the medical practitioner being called.

38. I do recall clearly advising the applicant on or about 20 November 2020, that this decision was a forensic decision, it was my decision, and I would not be revisiting the decision.”

69. [69]
    The appellant’s trial solicitor deposed that the Cherbourg Hospital doctor advised that he would not give evidence without a subpoena, that was raised with the appellant and on 24 November 2020 the appellant advised not to call the doctor.  Her contemporaneous notes confirm that.^[101]
70. [70]
    The solicitor’s contemporaneous notes record this advice to the appellant on 24 November 2020:^[102]

“Advised client - both counsel and I were of the view it would be dangerous to call Dr. to provide evidence of his ED as it was not relevant.

[YD] gave evidence that he digitally raped her.

Went through elements of rape with client.

Again reiterated too dangerous to call Dr as Crown would have a field day XXN Dr as to whether or not a flacid penis could still be inserted into vagina.

Would not be helpful evidence – in fact our view would damage case.”

71. [71]
    In a later conference the same day, the solicitor’s notes record this exchange with the appellant:^[103]

“Advised client – can’t call Dr and won’t call Dr. Double edged sword.

Counsel advised client anyone who is not prepared to give evidence without subpoena.

ED is double edged sword, no evidence of erect or flacid penis from the girls.

Had to make a decision on [WSR].

Client is happy with our decision not to call Dr. Client says ‘you guys make the decisions, I’ll go with it’.”

72. [72]
    Then two days later, on 26 November 2020, the solicitor’s notes record this exchange with the appellant:^[104]

“Conversation with client. Client angry we didn’t call his Dr. to give evidence re – erectile dysfunction issue.

Advised client again – it was a double edged sword as counsel pointed out.

Would give Crown chance to XXN Dr re flacid penis issues and rape elements.

Told client we had already discussed this with him and he instructed us that he was happy with counsel’s decision not to call Dr.

Client agreed with this.”

73. [73]
    Given the contemporaneous notes which record the advice not to call the doctor, and why, it is not able to be shown that the lawyers erred in any way.  Their recommendation was sound in the circumstances, and the appellant gave instructions not to call the doctor.  The same applies to the hospital record which could not go into evidence without some explanation, i.e a witness who would have presented the same dilemma for the appellant’s case.

LL

74. [74]
    This witness was called at the trial.  What the appellant contends is that LL could and should have given greater detail about matters to do with OS and YD.
75. [75]
    The appellant’s view on this aspect, as with other proposed witnesses, proceeds on a misunderstanding as to the nature of a criminal trial and where the onus lies.  Of course, the onus always lies on the crown to prove the offences beyond reasonable doubt.  The defence have no onus at all.  It was not up to the defence to prove every minute detail, nor was it the defence role to lead all the evidence that could possibly be led.  It would have been imprudent to do so.  As the defence counsel advised the appellant at the time, less is more in a criminal trial.
76. [76]
    LL was called after a statement had been taken and a conference held with her.  A judgment was exercised as to what she could usefully say.  I am unable to conclude that the way LL was called can be said to be a failure on the lawyers’ part, or one productive of a miscarriage of justice.

RAH

77. [77]
    The statement of RAH was produced by Legal Aid prior to the trial, on 10 February 2020.  There can be no doubt it was part of the suite of statements available to the appellant’s counsel.  Equally, a judgment was obviously made that he should not be called.^[105]
78. [78]
    In the statement, RAH said he knew the appellant and twice had contact with OS and YD, once on 1 and 2 January 2017 and then on 16 January 2017.  He expressed the view that the girls “were happy and relaxed” on 1 January 2017.  The evidence was of no particular utility in the context of the issues at the trial.  It is not surprising that he was not called.

PQR

79. [79]
    PQR is an older sister of OS and YD.  In her statement which forms part of the appellant’s material^[106] she relevantly states:

    1. she was in the appellant’s care until the beginning of high school, and then for a few weeks prior to her marriage;
    2. she made her own allegations against the appellant, which she withdrew;
    3. after she married in 2012 she had frequent video conversations with YD;
    4. she would visit a few times a year; and
    5. she did not observe any issues nor were any complaints made to her by OS or YD.
80. [80]
    Ms Holland deposed that PQR was a potential witness from the start and a statement had been taken from her.  Further, a decision was made as to which witnesses to call.^[107]  In oral evidence Ms Cuthbert explained the underlying rationale in selecting who to call:^[108]

“I had formed the view that it – it probably wasn’t sensible to call them all. And also what I was tending towards was that I wanted particularly women who’d had a relationship with the – the two complainant girls, in that he was a father on his – on his own, there were women who had played somewhat of a maternal role, and on the evidence, these complainant children had not disclosed anything to those women, and from recollection, these women had never seen any evidence of injuries or whatever, and they’d played a maternal role. Like, I think one took the girls bra shopping, and – and another had taken them shopping for swim – swim – swimwear. So I was tending in that direction.”

81. [81]
    PQR’s own statement shows there were potentially serious risks to the appellant’s defence if she was called:

“13. I made allegations against Dad around this time of things that happened when I was younger. I can’t recall the exact nature of the allegations.

14. I ultimately did a statement indicating that they were not true. I am aware that the charges were dropped against dad.

31. I know Dad can be harsh with discipline and take away items.”

82. [82]
    The risk of PQR being cross-examined about allegations concerning the appellant was obvious and to be avoided.  In fact Ms Cuthbert was able to explain the following albeit with limits on her memory:^[109]

“Now, this witness, her name was [PQR], and there was sister, [CQR]. Now, I don’t – there was in the background an allegation that [PQR] had been assaulted by the appellant, or that [CQR] had. And … my recollection, [PQR]  and [CQR] were siblings and raised in a sibling group. I formed the view that it was just too risky, that she may be cross-examined about family history or … yeah. There was too much risk attached to the [PQR] character.”

and:^[110]

“Now, I – do I understand your evidence that the reason that you gave [the appellant] for not calling [PQR]  was concern that she had made an allegation of assault historically against him and then withdrawn that complaint?‑‑‑Look, I don’t remember that – I don’t remember about withdrawal. I remember there was an issue about an allegation and I cannot recall whether it was a sexual assault or a physical assault, and there seemed to be risk associated with that witness. That – that is all I can remember.”

CHM

83. [83]
    His statutory declaration, dated 24 August 2017, has only general statements about the appellant’s family being a good family, and OS and YD being pleasant and sociable.  That evidence adds nothing to the witnesses selected by Ms Cuthbert.

WSR

84. [84]
    WSR’s statement, dated 4 September 2017, refers only to his opinion of the appellant’s physical limitations in terms of lifting, walking and grip pressure.  His unqualified opinion was irrelevant to the issues at trial.

GRB

85. [85]
    GRB’s affidavit, made on 29 August 2017, said that he knew the appellant and OS and YD for a long time, saw OS and YD regularly, they seemed happy, and the actions between themselves and the appellant were positive, loving and respectful.  His evidence is of such a general nature that it would have been pointless calling him.
86. [86]
    Ms Holland identifies his statement as one that was taken by Legal Aid.  He was therefore in the pool of witnesses from which Ms Cuthbert selected the ones she wished to call.  Leaving GRB out cannot be rationally criticised.

Mrs GRB

87. [87]
    Her statement, dated 29 August 2017, relevantly said she had known the appellant a long time, and OS and YD since about 2012.  She offered the irrelevant opinion that the girls respected the appellant and were never afraid of him.
88. [88]
    The appellant’s solicitor at the trial deposed that the defence took statements from PQR and WSR, amongst others.  On the day before the trial started the appellant informed the lawyers that, according to WSR, if he gave evidence the Department of Child safety was likely to remove a child then in WSR’s care.  Her contemporaneous notes confirm that.^[111]

Trial lawyers

89. [89]
    The solicitor’s notes of a conference with the appellant on 10 February 2020^[112] records the appellant being advised that counsel would select which witnesses to use.  On 12 March 2020, the solicitor’s notes record the appellant being advised what witnesses they intended to call.  Of the list in the appellant’s material, only WSR was included.^[113]
90. [90]
    Ms Cuthbert deposed to the fact that the appellant was informed at a conference with his lawyers on 20 November 2020, that the lawyers had conferred with the list of witnesses potentially to be called, selected those that they thought should be called, and decided not to call the others.  Following that conference, and after the appellant had sought and been given time to reflect, on 23 November 2020, he signed instructions listing those witnesses to be called.^[114]
91. [91]
    Further, Ms Cuthbert deposed that not all witnesses were relevant or appropriate, and the decisions about the witnesses were explained to the appellant at the time.^[115]

Further evidentiary sources

92. [92]
    In the appellant’s outline filed on 21 May 2024 further sources of evidence are nominated.  One consists of three witnesses, a married couple (GRC and LRC), and LL.
93. [93]
    Further consideration of GRC, LRC and LL can be dismissed. They gave evidence at the trial and clearly a judgment was exercised as to what they could usefully say.
94. [94]
    The appellant also nominates the following sources:

    1. the pharmacist at Murgon Pharmacy;
    2. medical records from Kingaroy Hospital;
    3. the deputy Group Leader of Goomeri SES;
    4. the manager of Murgon Real Estate;
    5. YD’s medical records from Murgon Hospital and Murgon Community Health; and
    6. YD’s medical records from Cherbourg Hospital.
95. [95]
    As with the additional witnesses put forward in the appellant’s submissions, the contention here suffers from a fundamental misunderstanding as to the nature of a criminal trial, where the onus lies, and how to best conduct a defence: see paragraph [75] above.
96. [96]
    All of the nominated avenues appear to be sources that might, not would, support allegations made by the appellant in his latest affidavit,^[116] as to his response to points that were raised at the trial in one way or another, either by what was in the s 93A interviews, or put in cross-examination.  They are new responses that relate to events concerning YD, the appellant’s interaction with YD, the limitations caused by his medical conditions, and photographic evidence concerning the house.
97. [97]
    For example, the suggested evidence from the Murgon Pharmacy is to establish only that the appellant’s medication came in boxes, not bottles.  The defence lawyers knew that as it was in the appellant’s statement dated 25 February 2019, in response to count 16.^[117]  That fact is, at best, tangentially relevant to count 16 which was particularised as being that the appellant threw “a medication bottle or container” at YD.  Her evidence was that he threw “medication” at her, and it “was like in this … bottle container thing”, which she described as a “Plastic bottle thing”.^[118]  That the medication came in boxes from the chemist does not mean it could not have been in a plastic bottle later.
98. [98]
    Another example is the Kingaroy Hospital records, said to show the appellant’s lifting limitations on weights over 10 kg.  OS accepted that the appellant had difficulty lifting things,^[119] though she said she had seen him lift things like computers.^[120]  Proving a particular limitation is a tangential point.  In any event, the defence lawyers knew that the appellant had suffered a hernia problem since 2010, had back problems and would not, according to him, have been able to move OS.  So much was in the appellant’s statement dated 25 February 2019, in response to count 4.^[121]
99. [99]
    Yet another is the evidence said to come from the manager of Murgon Real Estate, which is to photographs showing no holes in bathroom walls or locks on bedroom doors.  Such photos were in the possession of defence counsel prior to the trial.^[122]  The Crown pointed out to the primary judge that there was no evidence from YD or OS that there were holes or keyholes to look through.^[123]  The witness, LL, gave evidence there was no keyhole in the bathroom door.^[124]  OS denied telling the community education officer that there was hole in the wall, saying that the door would remain open.^[125]  There was no mention of a hole or keyhole in the s 93A interviews.
100. [100]
     Yet another is the evidence said to come from YD’s medical records, going to her psychological state, a back injury or a chisel injury to the hand.  There was no evidence from YD about an injury to her back.  The witness BK, however, referred to occasions when YD cut her hand with a chisel and injured her back during a school high jump and was taken from school for medical attention.^[126]
101. [101]
     None of the matters raised appear to have any decisive impact on the issues at trial.  They go no further than untested allegations as to peripheral or tangential matters.
102. [102]
     I am unable to conclude that the appellant’s lawyers’ approach to the witnesses to be called was anything other than sensible.  Moreover, the appellant was appraised of the approach to be taken and the decisions made as to whom to call.  His suggestions now do not carry any weight in terms of the impact on the verdicts.  None of them go materially further than the evidence that was called.
103. [103]
     No error is demonstrated in respect of this aspect of the appeal.

The appellant giving evidence himself

104. [104]
     The appellant’s affidavits depose that he insisted on giving evidence “to prove my innocence” and only signed the written instructions about not doing so under duress.  The duress he alleges comes from the lawyers telling him that: (i) the barrister wanted the right of last address; (ii) the running of the trial had been planned that way; (iii) if he did not follow their advice, the barrister would withdraw from representing him; and (iv) the appellant did not want to be unrepresented.
105. [105]
     The instructions as to giving and calling evidence, dated 23 November 2020,^[127] relevantly state:

“5. I understand that I can if I wish I can give and or call evidence on my own behalf.

6. I have discussed the case with my barrister, and in particular, I have discussed the situation in relation to my giving and calling evidence on my behalf at my trial. As a result of these discussions my barrister has given me certain advice.

7. I understand that I may:

7.1. give evidence on my own behalf and call evidence;

7.2. give evidence on my own behalf but not call any other evidence:

7.3. call evidence but not give evidence on my behalf; or

7.4. neither give or call evidence on my behalf.

8. I understand that if I choose to give or call evidence at my trial that:

8.1. I will have the opportunity to put my story before the court;

8.2. the Prosecutor will have the opportunity to cross examine me;

8.3. my barrister will lose the right of last address to the Jury; and

8.4. an appeal court could apply the proviso on any appeal I may make if I am convicted.

9. I understand that if I give evidence at my trial that my demeanour in court, and what I say may be taken into account by the Judge and Jury.

10. I understand that if I choose to give or call evidence at my trial and lose the right of last address to the Jury, that the procedure for the closing addresses will be as follows:

10.1. my barrister will give his closing address to the Jury first;

10.2. the Prosecutor will then give their closing address to the Jury (after my barrister);

10.3. the Judge will give certain directions to the Jury; and

10.4. the Jury will be sent away to reach a decision regarding my guilt.

11. I confirm my legal representatives have advised me of the possible importance of the closing address to the Jury, and that if my barrister gives the last address that that will be the last address the Jury hears before the Judge gives their directions.

12. I have considered the advice of my legal representatives and my rights thoroughly, and I instruct that I do not want to give evidence at my trial.

…

17. I understand that the decision with regard to me giving evidence and calling evidence on my behalf at my trial is entirely my own, and I make it of my own free will, independent of any undue influence by any party. Further, I make it fully understanding its implications and consequences.”

106. [106]
     In his affidavit filed 23 April 2024, the appellant deposes as to what he alleges was said at a conference on 23 November 2020, during the trial:

“8. The next time that giving evidence was discussed was in a meeting only with Rachel Holland, not Ms Cuthbert, on 23 November 2020 on the first floor of the Kingaroy courthouse during the trial, During this conversation I recall:-

a. Ms Holland gave me the document titled GIVING/CALLING EVIDENCE INSTRUCTIONS and asked me to sign them;

b. Ms Holland said words to the effect that Ms Cuthbert had planned the running of the trial so she would be the last to address the Jury. To this I said I still wanted to give evidence to prove my innocence;

c. Ms Holland said words to the effect that, in the unlikely event that I should be found guilty, I would be given the opportunity to give evidence at the Appeal;

d. When I restated that I wanted to give evidence, Ms Holland told me words to the effect that should I wish to do so then Ms Cuthbert would request to be excused from representing me any further at the trial due to a conflict arising.

9. At an earlier stage of the proceedings my previous barrister had requested to have himself excused from representing me due to a conflict arising. Because of this experience I was very worried about the prospect of Ms Cuthbert withdrawing part way through the trial. For this reason in my conversation with Ms Holland I felt like I was under a lot of stress and pressure to sign the document.

10. This conversation was about 5 or 10 minutes and I recall that we were in a hurry to go back into Court to continue the trial. I acknowledge that I signed the instructions indicating that I did not wish to give evidence, I did this because I was under stress and was worried that I would find myself in a trial unprepared and without representation. I maintain that I always wished to give evidence in my trial.

11. If Ms Holland had not told me that Ms Cuthbert would withdraw, I would not have signed the instructions and I would have insisted that 1 give evidence.”

107. [107]
     During his oral evidence before this Court, the appellant reiterated that he only signed the instructions as to not giving evidence as a result of what he called duress.  That duress was the threat by the lawyers to withdraw from representing him at the trial.  He said that occurred at the conference on 23 November 2020.
108. [108]
     The appellant’s trial counsel, Ms Cuthbert, rejected any suggestion of duress in relation to the decision not to give evidence.^[128]  Specifically, she deposed that on 20 November 2020 there was a conference with the appellant at which the question of calling or giving evidence was discussed:

“12. During the conference with the applicant on 20 November the following information and advice was provided:

a) As the defence was intending to call witnesses, the right to address last was lost. Consequently, the defence would be addressing the jury first.

b) That the applicant faced particular difficulties in giving evidence as his instructions had not been put in full by Mr Pierce in the cross-examination of the complainant children and that I had been unsuccessful in my application to have them recalled for further cross-examination on that basis;

c) The applicant’s evidence would need to be limited to what was put in cross-examination of the complainants by Mr Pierce, if the applicant was to avoid being accused of recent invention by the Crown Prosecutor;

d) That given my observations of the applicant’s difficulty in verballing^[129] restraining and controlling himself, my opinion was that I did not want him in the witness box;

e) That I formally advised him that he ought to seriously consider not giving evidence:

f) That given the limited nature of the evidence he could give, the defence would be better served by relying on the observations and character evidence of the defence witnesses to be called;

g) That Ms Holland and I had held conferences with his potential witnesses and had selected those witnesses that the defence would call on the trial;

h) That we would not be calling all the witnesses who had provided statements: and

i) The names of the witnesses to be called were included in the document to be signed.

13. It is my recollection that the applicant did not provide instructions on 20 November but sought the weekend to consider his position. We agreed that we would hold a further conference on Monday 23 November to take the applicant’s instructions.

14. I did not hear Ms Holland make any threats about counsel seeking to withdraw from appearing for the applicant, if he did not agree to not give evidence.

15. I did not make any such threats.

16. It was my usual practice to say to clients, words to the effect of, “I cannot tell you what to do. I can only provide you with advice, it is up to you whether you accept it or not”. I cannot now recall whether I said these words to the applicant.

…

18. I reject any suggestion that I offered the applicant threat, promise or inducement during the 20 and 23 November conferences.”

109. [109]
     There are three specific aspects of the appellant’s account with which both Ms Cuthbert and Ms Holland take issue.  The first is his statement that Ms Cuthbert said she did not want him to give evidence as she would then lose the right to address last.  Ms Cuthbert points out that as the defence were calling witnesses she had to address first in any event.  That is substantiated by Ms Holland’s evidence, that as the appellant had instructed them to call witnesses the right of last address had already been lost.^[130]
110. [110]
     The second is that part of his affidavit which attributes to Ms Holland the statement that Ms Cuthbert would seek to withdraw if their advice was not followed.  Ms Cuthbert specifically denies any such words were said.^[131]  So does the solicitor, Ms Holland.^[132]
111. [111]
     The third is that Ms Cuthbert was not at the conference on 23 November 2020.  Ms Holland said she definitely was there, both in her affidavit and in oral evidence.  Her notes support that, referring to counsel being at the conference and the specific advice given by counsel.^[133]  Ms Cuthbert said she was there,^[134] and specifically that she was there when Ms Holland read out the instructions document.  Ms Cuthbert said in oral evidence that she never assumes literacy on the part of a client and always has the instructions read out loud.
112. [112]
     In oral evidence the appellant accepted that at the conference on 20 November 2020 (a Friday) he was: (i) advised strongly that he should not give evidence, and Ms Cuthbert “doesn’t want you anywhere near a witness box”; (ii) Ms Cuthbert said “I can’t tell you not to give evidence; we can only advise you”; and (iii) the prospects of winning would diminish if he gave evidence.^[135]  However, he maintained that he had insisted on giving evidence.
113. [113]
     He explained how that was resolved:^[136]

“… I just need to understand your evidence. You haven’t answered the prosecutor’s question. You were asked, “On the 20^th of November in this conference, do you accept that you told counsel that you would take the advice and not give evidence?‑‑‑I don’t recall on the 20^th, but I do recall saying, “Nothing I can do. I’ve got to take your advice, simple as that. You aren’t listening to what I say so whatever will do.”

So you ---?---I remember saying that, but ---

Yes?‑‑‑ – – – not at  that conference. I do not recall at that conference me saying those words. I do recall saying, “I’ve had enough. I – there’s nothing I can do” and throwing my hands up in the air and giving up because everything I’d tried to say wasn’t being listened to.

So are you accepting that at some point you did tell counsel you would take counsel’s advice?‑‑‑At some point that was said. Yes. But I’m denying saying it prior to being forced to sign a document to waiver. Once I had been given no other option, I had to go, “Enough’s enough.””

114. [114]
     The solicitor’s contemporaneous notes of the conferences with the appellant do not support his allegations.
115. [115]
     On 12 February 2020, the day of the application to cross-examine the complainants again, the appellant was advised, “Counsel does not want client to give evidence. Reiterated.”^[137]
116. [116]
     On 12 March 2020, the solicitor’s notes record the appellant was told at a conference:^[138]

“We as defence will be going into evidence – do not want you to give evidence.

Will call witnesses.

…

One reason don’t want you to give evidence is because you talk too much.

Counsel said to client at length – if she wants to know something she will ask.

Our job is to protect you and to protect you at trial.

We can get enough from the other witnesses.”

117. [117]
     On 16 November 2020, the appellant was advised about the structure of the trial, which included the fact that the defence would be calling witnesses of their own:^[139]

“Counsel advised client what is happening with the trial.

First 2 ½ days will be listening to evidence from Crown witnesses and last witness Sharon Begg will be on Monday.

10.30 – on Monday 23-11-20 – our own witnesses will be required.

Counsel will address first …”

118. [118]
     The solicitor’s notes record the appellant giving instructions that he would not give evidence at a conference on 20 November 2020:^[140]

“Wanting to evidence?

It was after I saw the jury’s reaction to the CP’s opening.

…

Less is more in a jury trial.

…

Counsel has organised to run trial as if you were not going to give evidence.

Counsel says she doesn’t want client anywhere near a witness box.

I can’t tell you not to give evidence we can only advise you.

My formal advice to you is not give evidence.

Prospects of winning will diminish if you give evidence.

We need to know what you are going to do.

Client advised – he will take our advice and not give evidence.”

119. [119]
     The start of that note was explained by Ms Holland.  Counsel raised concerns about the appellant giving evidence after observing the jury’s reactions during the Crown’s opening address.^[141]  That part of the note starting “I can’t tell you not to give evidence” and “My formal advice”, accords with what Ms Cuthbert said in her oral evidence as to the invariable way she approached such issues in trials.  The appellant agreed in cross-examination that he was told that.
120. [120]
     On 23 November 2020, the solicitor’s notes record:^[142]

“Evidence Instructions

Read them out aloud to him. Re-iterated to him if he calls witnesses we lose the last address to the jury.

I asked client if he understood what that meant – he said ‘yes – we go first’.

121. [121]
     In their oral evidence, both Ms Cuthbert and Ms Holland expanded upon the reasons why they did not want the appellant to give evidence, and why they advised against it.  For example, Ms Cuthbert:^[143]

“The appellant had a difficulty in … he spoke too much. He offered information that had not been asked for. He would be quite insistent on wanting to make the point, whatever it was, whether it was relevant or not, and I formed the view that he would go quite poorly in a witness box, because … he couldn’t control himself, and if he wanted to make a point, he would make it. And I actually said to him that he spoke too much, and … I did also say to him that he needed to stop giving me all of this information, … that if I wanted to know something, I would ask him, and that … it’s not desirable to just keep giving all this information to counsel, because – well, you know … the reasons why. Now, that would have happened a number of times. A number of times I had to remind him that, “Please do not give me any information unless I ask you for it”.”

122. [122]
     The appellant’s oral evidence and submissions to this Court revealed the same traits.  Even in his oral evidence before this Court, the appellant continued to insist that irrelevant details were necessary to advance in order to have a fair trial.  He said:^[144]

“And at that time, I did stress that I wanted to give evidence because I had something that had to be said that was pertinent to the matter, and the only way it would come out is if I spoke up.

And what did you believe was pertinent to the matter?‑‑‑My medical history, my weights, the photos from the real estate agent when I’m supposed to have been fought off and some – or one of the children ran into a room and locked the door. The photos from the real estate clear showed no lock in doors, no holes in walls. And to me, that was a pertinent – to the truth of the matter.”

123. [123]
     In cross-examination he said he did not accept the lawyers’ assessment that he was a poor witness.
124. [124]
     The transcript reveals another reason why counsel would have been cautious about putting the appellant on the witness stand.  That relates to the appellant’s ability to control his reactions.  During the pre-trial application this exchange occurred:^[145]

“HIS HONOUR: Your client’s not helping himself by shaking his head at me and glaring at me.

DEFENDANT: No. I wasn’t even looking at you, your Honour.

HIS HONOUR: Yes, you were.

DEFENDANT: I do apologise. I was actually looking at [indistinct]

HIS HONOUR: So I’m just making the observation. You don’t help yourself by doing that.

MS CUTHBERT: My instructing solicitor will counsel him.

HIS HONOUR: Yes.

MS CUTHBERT: And then your Honour asked me to canvas some issues with the potential - - -

HIS HONOUR: It might be as well to advise [the appellant] that he should be careful about such displays when we get to the point of having a jury here, if that’s what happens.

MS CUTHBERT: That should - - -

HIS HONOUR: No doubt you’ll explain all that to him.

MS CUTHBERT: I shall, your Honour.”

125. [125]
     Ms Holland’s note of 12 March 2020^[146] ends with this: “Talked to client about no reaction in court”.
126. [126]
     As is apparent from the solicitor’s notes taken at the time of the conferences, the client was well aware that if the defence called witnesses, as he instructed them to do, then the right of last address would be lost, and his counsel would address first.  That was made clear many months before the trial and reiterated close to and at the trial.  In those circumstances, I cannot accept the appellant’s assertions^[147] that: (i) Ms Cuthbert or Ms Holland said the case had been  prepared on the basis that Ms Cuthbert would address last; and (ii) Ms Cuthbert did not want him to give evidence as she would lose that right of last address; and (iii) if he insisted on giving evidence then Ms Cuthbert would withdraw.  The right of last address having already been lost, it is nonsensical to suggest that either Ms Cuthbert or Ms Holland would have said it or used it as some form of pressure.
127. [127]
     Further, the threat which the appellant says was made, that Ms Cuthbert would withdraw if he insisted on giving evidence, is at odds with the fact that advice had been given, repeatedly, that calling the defence’s own witnesses meant the right of last address was lost.  That advantage was long known to be gone as a factor in how to run the trial.  The advice on 20 November, before the evidence instructions were signed, was that the lawyers could not tell the appellant what to do, but merely advise him.  At that point, the trial was well under way, having commenced on 18 November. The prospect that counsel was likely to have threatened to withdraw at that point, or stood by while such a threat was made, is one that is romancing rather than real.
128. [128]
     In their oral evidence, both Ms Holland and Ms Cuthbert denied that any threat to withdraw was made.  Each said that if the appellant had, in fact, insisted on giving evidence against their advice, they would have accepted that and he would have given evidence.  Ms Holland also said that if he had instructed that he intended to give evidence she would have noted that in her notes of conferences.  There is no such note.  Further, the evidence of Ms Holland was that the particular conference where that advice was given ended with the appellant responding, as he did on many issues, “Not a problem”.  For example, Ms Holland said:^[148]

“Now, [the appellant] has sworn, and you will have seen this to the fact that he was insistent in all of his conferences with … his solicitors that he wanted to give evidence at his trial. Do you agree or disagree with that?‑‑‑Look, I don’t recall that he was insistent on that. We were always giving him advice. And he could take that advice or he didn’t take it. And we would advise him in relation to giving evidence, and if I recall, he said he – he would – he agreed with us, he took our advice, and he would always end a discussion with us “not a problem”. And I do recall him saying that he would take our advice, he wouldn’t give evidence, not a problem.”

129. [129]
     And, Ms Cuthbert said:^[149]

“Yes. And what was his response to your advice?‑‑‑Look, … generally speaking, the appellant, … had a tendency to, sort of, complain a bit, but he then would accept the advice. And he’d say something like, “Yeah. That’s all right. Not a problem”, or, “I’m happy to do what you’ve advised.” So it – it was – it was that sort of reaction. And then he asked for – for the weekend to consider his position, which – which was – which was fine.”

130. [130]
     In my view, there is one compelling reason to conclude that the alleged threat to withdraw was not made.  In his oral evidence the appellant said that he always denied the offences occurred, and maintained those denials to his lawyers, making no admissions.  Similarly, Ms Cuthbert said in evidence that there was no occasion where the appellant waivered in his denials, and he made no admissions.  She said there was no conflict and therefore no reason to withdraw:^[150]

“There are reasons why you might not ask certain questions, obviously, of a client. But you formed the view that he would not be a good witness, and you advised him accordingly. There wasn’t anything that you were told, though, that would’ve professionally embarrassed you and put you in a conflict?‑‑‑No. No, there was not, your Honour.

So there was no suggestion of any admission to you which may have put you in an embarrassing position or anything like that?‑‑‑No. No, there was not.”

131. [131]
     It was therefore the case that no conflict arose that would justify even considering such a course, let alone taking that step.
132. [132]
     Ms Cuthbert and Ms Holland appeared to be giving their evidence truthfully and carefully.  They said no threat to withdraw was made, and Ms Holland’s contemporaneous notes support that.  There was, in fact, no legal basis upon which the lawyers could have withdrawn if the appellant insisted on giving evidence.  Acceptance of the appellant’s version would require the conclusion that each of Ms Cuthbert and Ms Holland took the unethical step of threatening withdrawal where there was no legal basis for it.  I cannot draw that conclusion.  I do not accept that the lawyers would have taken such an unprincipled step.  In my view, the appellant’s assertion that such a threat was made should be rejected.
133. [133]
     I do not accept the allegations that the appellant’s lawyers breached their obligations to him the conduct of the trial, and specifically in respect of the calling of witnesses, or his desire to give evidence himself.  In my view, the inevitable conclusion is that reflected in the solicitor’s notes, namely that careful advice was given to the appellant, particularly as to whether she should give evidence, and he accepted and acted on that advice.
134. [134]
     There being no duress as contended, the only conclusion available is that the reason why the appellant did not give evidence is that he accepted the advice of his lawyers.
135. [135]
     No miscarriage of justice has been demonstrated.

Conclusion

136. [136]
     All grounds of appeal have failed.  I propose the following orders:

1. Leave to amend the notice of appeal granted.
2. Leave to adduce further evidence refused.
3. Appeal dismissed.

137. [137]
     BODDICE JA AND DAVIS J:  We agree with the orders proposed by Morrison JA.
138. [138]
     Morrison JA’s comprehensive summary of the evidence and relevant issues in dispute on the appeal, allows us to briefly state our reasons for dismissing the appeal.
139. [139]
     We agree with the reasons of Morrison JA on ground 1.  No error is demonstrated in the primary judge’s decision in respect of the application to further cross-examine each complainant.  The ruling was consistent with R v Marshall.^[151]  Further, as a consequence of that ruling, the appellant’s counsel was afforded the opportunity to cross-examine on the key issue, collusion/concoction.
140. [140]
     We also agree with Morrison JA’s reasons for concluding that there is no merit in ground 4.  Having regard to the issues in contest at trial, no error is demonstrated in the trial judge’s failure to warn the jury against placing undue weight upon the contents of exhibit 15.  Such a warning would have undermined a central thrust of the defence case in respect of the contents of exhibit 15.  Those contents were submitted to the jury to be strong evidence of concoction.  This case then is very different to Gately v The Queen^[152] and R v BEC^[153].  The jury having access to exhibit 15 in the jury room during their deliberations did not cause a miscarriage of justice.
141. [141]
     The appellant contended, by ground 5, that his trial lawyers did not follow instructions by firstly not calling the appellant to give evidence in his own defence and secondly by not calling other witnesses.
142. [142]
     There was no doubt that the appellant did instruct his trial lawyers that he would not give evidence himself.  There are written signed instructions to that effect.  His real complaint was based on an assertion that he signed his written instructions, confirming that he would not give evidence at trial, because he was told 1: he could not give evidence because the trial had been run so that defence counsel would have the right of last address to the jury, 2: if he persisted in wanting to give evidence counsel would withdraw as there was a conflict of interest.
143. [143]
     We find that the appellant was not told that the right of last address would be lost if the appellant gave evidence himself.  By the time the written instructions were signed, counsel had already made the decision to call evidence at trial with the result that she would not have the last address whether or not the appellant gave evidence himself.  The appellant was unable to explain the obvious inconsistency between his assertions and the fact that other evidence was being called in his defence, to his knowledge, losing the right of last address in any event.
144. [144]
     The threat to withdraw could, no doubt, vitiate any consent of the appellant to waiving his right to give evidence.^[154]  However, there is no credibility in the appellant’s assertions that there was a threat.  There is no evidence of any basis upon which a conflict may have arisen.
145. [145]
     That lack of credibility was also supported by the patent inconsistency between the appellant’s assertions, the contents of the contemporaneously made conference notes and the detailed written instructions signed by the appellant, prior to being called upon as to whether he wished to give or call evidence at trial.
146. [146]
     The consistency between the evidence of both the trial counsel and instructing solicitor, and the contents of the contemporaneously made documentary evidence, overwhelmingly supports a conclusion that their evidence is to be preferred where it conflicts with the appellant’s evidence.  They denied making the threat and denied advising the appellant that him giving evidence would lose the right of last address to the jury.
147. [147]
     This conclusion is also supported by a consideration of the witnesses who were called at trial.  Their evidence was relevant to the defence advanced at trial.  By contrast, there was good forensic reason not to call the witnesses, the appellant now says he wished to be called at trial.  Their evidence was not likely to materially advance the defence case, and, in the case of PQR, may have been harmful to the defence case.
148. [148]
     Once it is accepted that no threat to withdraw from acting for the appellant, should he insist on giving evidence, was made by counsel, there is no basis to find that trial counsel and her instructing solicitor failed to follow the appellant’s instructions.  No miscarriage of justice can arise in those circumstances.