R v SEL[2024] QCA 166

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Bond JA.
2. [2]
   BOND JA:  As at January 2019, the appellant, a man aged 33, had been in an off and on relationship with Suzanne^[1], a woman in her late 20s for about 7 years.  They had a child (aged 2) (the appellant’s child).  Suzanne had two younger half-sisters: Linda (aged 12) and Mary (aged 10).  Mary had a friend named Jane also aged 10.
3. [3]
   On 20 January 2019, Linda, Mary and Jane, were at Suzanne’s two-bedroom unit for a two-night sleepover.  On the first night, after having a verbal altercation with Suzanne, Linda called her mother and left without staying the night.  It was alleged that at some time after Linda had left, the appellant committed the following offences of indecent treatment against Mary and Jane:

4. [4]
   After a five-day jury trial in the District Court in February 2023 the appellant was convicted of counts 1 to 4 but acquitted on count 5.  He was sentenced to concurrent sentences of imprisonment (with parole eligibility after serving 12 months) as follows:

3. (a)
   Count 1: Two years imprisonment.

3. (b)
   Count 2: Four months imprisonment.

3. (c)
   Count 3: Two years imprisonment.

3. (d)
   Count 4: Two years imprisonment.

5. [5]
   The appellant appeals his conviction on the following grounds:

3. (a)
   Ground 1: The verdict of guilty on count 4 is unreasonable and cannot be supported by the evidence; and

3. (b)
   Ground 2: There has been a miscarriage of justice because of one or both of the following:

3. (i)
   the admission of irrelevant and prejudicial evidence of the children being given intoxicants; and

3. (ii)
   the admission of irrelevant evidence of the appellant leaving the unit or hiding.

6. [6]
   For the following reasons the appeal should be dismissed.

Ground 1

7. [7]
   It must first be observed that the appellant does not challenge the verdicts on counts 1, 2 or 3 on this ground.  The appellant accepted that the evidence supported the proposition that the indecent act for count 3 had occurred.
8. [8]
   The basis upon which the appellant advanced the contention that the verdict on count 4 was unreasonable concerned whether it had been proved beyond reasonable doubt that Mary had been exposed to the indecent act.
9. [9]
   The appellant supported the argument essentially in two ways.  First he suggested that while Jane described seeing the conduct particularised for counts 3 and 4 (and thereby supporting the case that she personally was exposed to that conduct), the evidence of Mary did not do so in ways which demonstrated beyond reasonable doubt that she had been exposed to the act particularised.  Second although the appellant acknowledged that Jane’s evidence by itself supported the proposition that both she and Mary had been exposed to the indecent act constituting counts 3 and 4, he suggested that the quality of Jane’s evidence in relation to the question whether anyone other than she had been exposed to that act was insufficient to prove beyond reasonable that Mary had been so exposed.

The relevant aspects of the evidence

10. [10]
    The principal evidence supporting the counts of the indictment was elicited from Jane and Mary.
11. [11]
    Jane’s interviews with police on 25 August 2020 and 15 December 2021 were played to the jury.  Mary’s interviews with police on 3 September 2020 and 1 October 2021 were played to the jury.  Pre-recorded evidence from each of Jane and Mary was also played.
12. [12]
    As will appear, Jane’s evidence supported counts 1 to 4.  Mary’s evidence supported count 5, but Jane’s evidence did not, even though it related to the appellant allegedly touching her.  Otherwise, Mary gave evidence about seeing sexual activity between the appellant and Suzanne in their bedroom, but not in the same detail as Jane.  She also gave evidence which supported the proposition that the appellant had demonstrated a sexual interest in Jane.

Jane’s evidence

13. [13]
    As to count 1:

    1. Jane said she, Mary, the appellant and Suzanne went to the bedroom shared by Suzanne and the appellant.  The appellant took his pants and undies off and Suzanne took her clothes off.  Suzanne then lay down on the bed and the appellant “started … putting his finger in her private part”.  She claimed she and Mary saw that.
    2. Later in her evidence in chief, Jane claimed Linda was also present for this act.  As will appear, she was not supported in this regard by Linda’s evidence.
14. [14]
    As to count 2:

    1. Jane said there was then a sound (which she first described as a “knock on the door” but later described as a “glass bang”) and Suzanne and the appellant put their clothes on to investigate.
    2. Jane said that she and Mary went too and the appellant, while standing behind Jane, touched her “in the middle of [her] bum”.
15. [15]
    As to counts 3 and 4:

    1. Jane said they then returned to the bedroom and Suzanne lay down on the bed again.  The appellant “started putting his finger … up her private part again and … they were making lots of weird noises and [she] and Mary were just standing there”.
    2. Jane said that the appellant started rubbing Suzanne and then started talking to she and Mary saying “you really got to get in there”.  The same detail was related later in the interview but in a context which was unclear as to whether it related to the time of count 1 or counts 3 and 4.
    3. Later in her evidence in chief, Jane claimed that this incident happened on the second night not the first night.
16. [16]
    As to count 5, Jane had not mentioned that incident in either interview.  She was asked in the second interview whether anything ever happened with she and the appellant in the shower and she said no, she could not remember.
17. [17]
    Jane was cross-examined in pre-recorded evidence.  The only relevant part was as follows:

“MR FEENEY: I’m going to say some things to you, Jane. Now, you tell me if what I say is true or not true.

WITNESS: Okay.

MR FEENEY: All right. When you were at the sleepover, [the appellant] did not touch Suzanne. True or not true?

WITNESS: True.

MR FEENEY: I’ll repeat that question for you. That [the appellant] did not touch Suzanne?

WITNESS: True.

MR FEENEY: All right. [the appellant] did not take his clothes off in the bedroom. True or not true?

WITNESS: True.”

18. [18]
    In re-examination she was asked to demonstrate on a body map what she regarded as the private parts of a girl.  She did so and was then asked whether at the sleepover the appellant had touched Suzanne’s private parts and she answered in the affirmative.  I observe that it was open to the jury to conclude that the answers Jane had given to the above-quoted cross-examination questions reflected a misunderstanding of the form of the question.

Mary’s evidence

19. [19]
    Mary first described that the appellant and Suzanne got she and Jane to go into their bedroom, where they gave Jane cordial but forced Mary to have a “beer”, but which was probably a brown spirit.  She said that they had told her that if she did not drink they were going to kill her.
20. [20]
    She then said that Jane was actually in the kitchen playing with the appellant’s child when this happened.  She then changed that description to Jane being in the lounge room watching a movie with the appellant’s child.
21. [21]
    After having the “beer”, the appellant and Suzanne put the appellant’s child to bed.  Mary and Jane were walking around, bored and then Suzanne invited them into her room.
22. [22]
    Mary then said “my head’s getting all mixed up.”
23. [23]
    She then said that all she knew was that “they forced me to take their drug”, proceeding to describe circumstances which to an adult seemed like using a glass bong.  She said that they said to her that if she did not take it they were going to hurt her really bad.  She took it by sucking on it but said that it tasted “yuck”.
24. [24]
    When she said that she didn’t want anymore, “they said you can sleep in my room” and they put a mattress on the floor.  “And that’s all I can remember”.
25. [25]
    She said that they had not asked Jane to do anything with the drug.  She was asked whether Jane was there watching her do this and responded “No, I think she was asleep.  I don’t know.  I don’t know”.
26. [26]
    That night she and Jane slept on the mattress on the floor in the appellant’s and Suzanne’s room.
27. [27]
    After having described how the appellant and Suzanne set up the blow up mattress and without prompting by the interviewing officer she said that when she and Jane were “in the corner just sitting there” Suzanne and the appellant started taking off their clothes and they “done something on the bed”.  She and Jane closed their eyes and faced the wall and Suzanne and the appellant “were doing yuck stuff”.
28. [28]
    The passage of the interview was as follows:

“[MARY]: Um, they were doing yuck stuff.

SCON CAREY: Yeah? Alright. Can you tell me about the yuck stuff?

[MARY]: Um, like yeah, sex.

SCON CAREY: Sex? Yep. Okay.

So what did you see? What did, what did you see them doing on the bed?

[MARY]: They were moving up and down.

SCON CAREY: Yeah. And where was [the appellant]?

[MARY]: On the bed laying down with her.

SCON CAREY: With?

[MARY]: Suzanne.

SCON CAREY: Suzanne? Alright. And where was [Suzanne]?

[MARY]: Doing it with him.

SCON CAREY: Okay. And did they have clothes on or off?

[MARY]: Off.

SCON CAREY: Off? Okay. Um, and did, were they saying anything to you and [Jane]? No? No. Were they saying anything?

[MARY]: They just told us to watch and we didn't want to, we were like that at the wall.

SCON CAREY: Oh, they told you to watch, did they? Oh, okay. Um, did they tell you to watch before or after they took their clothes off?

[MARY]: Mmm. Before.

SCON CAREY: Alright. And was this at night time or was it day time?

[MARY]: Night time.

SCON CAREY: Alright. So were you already in bed, were you? Okay. Alright.

[MARY]: And then we were sitting up 'cause we couldn't go to sleep so we just sat in a corner on the mattress and then we stood up and stood there, 'cause we were like this is boring.

SCON CAREY: Mmm.

[MARY]: And then they started doing that and we put our eyes like that on the wall.”

29. [29]
    When asked what she meant by “sex”, Mary said that Suzanne and the appellant were moving up and down and “all that yuck stuff” and their bodies were touching everywhere.  It became clear that Mary did not have a clear idea of what “sex” was.  After it went on for 10 minutes, Mary said they stopped and she and Jane went to sleep.  Nothing else happened that night.
30. [30]
    She went further to describe how the appellant used to touch her “butt” every time she walked past.  She described an incident when she and Jane were in the shower which supported the allegations in count 5.  Suzanne had asked the appellant to turn the tap on in the shower because it was very tight.  He went in and did so.  Jane had no clothes on.  He looked her up and down and “when he was walking out he grabbed his hand and went from her vagina all the way up to her boobs and walked out.”
31. [31]
    She was later asked questions about the time she had described when she and Jane saw Suzanne and the appellant having “sex” and asked whether anyone said anything about the appellant kissing Jane.  She said they had and that Jane said no and giggled because she was frightened.
32. [32]
    Mary did not give evidence corroborative of count 2.
33. [33]
    Her 1 October 2021 interview with police –

    1. repeated details of the event previously described when Suzanne and the appellant had “sex” on their bed whilst Mary and Jane were on the blow up mattress in their room.
    2. repeated details supportive of count 5;
    3. advanced allegations of uncharged indecent touching of her by the appellant at an earlier time in which he massaged her leg and “got closer to my privates”.
34. [34]
    In Mary’s pre-recorded testimony, Mary volunteered that it was not true that Suzanne and the appellant had said they would kill her if she did not do that.  She said it was that she felt uncomfortable and uncertain as to what they would do to her if she did not do what they asked.  Everything else was true.
35. [35]
    Cross-examination was very limited.  Relevantly it consisted of counsel suggesting that the appellant did not touch Mary on the bottom and did not touch Jane in the bathroom.  There was no re-examination.

Linda’s evidence

36. [36]
    Linda’s interview with police was played on the second day of trial.  She described that when she, Mary and Jane arrived, they and their stuff were placed in the appellant’s child’s room.  The appellant’s child was going to sleep on a mattress in Suzanne’s room.  However, the plan changed slightly so that Linda was to sleep in the appellant’s child’s room and the other two girls would sleep on a mattress on the floor in the living room.  She said that she did not see a mattress in Suzanne’s room and that they were not allowed in there.  She knew who the appellant was but did not really talk to him.  He had never made her feel uncomfortable.  Nor had she ever seen anything happen between he and Suzanne which made her feel uncomfortable.  She did not disclose having seen any sexual behaviour at the sleepover.  She did express the view that Jane had behaved in a very hyperactive way, trying to act grown up when she really wasn’t.  Jane had been playfighting with the appellant and he had been actually playing back with her, which he did not usually do.

Jane’s mother’s evidence

37. [37]
    Jane’s mother gave evidence that Jane had some disabilities affecting her movement and co-ordination and that she also had speech and language impairment and learning difficulties.  Although Jane was 14 she had the maturity level of a 10-year-old.  Back when she was 11 she would probably have had the intellectual capacity of a 7- or 8-year-old.  She can effectively communicate her ideas but she cannot effectively communicate her emotions all the time.  There have been instances of delay between something happening to her and her being able to tell her mother about it.
38. [38]
    She related how she dropped Jane off at Suzanne’s unit on the night in question.  She gave evidence of some innocuous text exchanges which occurred between them that night.  Jane stayed two nights at Suzanne’s unit and then she was picked up.  When she picked Jane up, Jane told her that the sleepover was fine.
39. [39]
    The next time it was mentioned was a few days later.  Jane’s mother had found out from Mary’s mother that Suzanne’s boyfriend had been at the sleepover.  She asked Jane about that and Jane said that he had been there and that she was scared of him.  Jane said that he had touched her on the bum but that acknowledged that it could have been an accident.  Jane’s mother just put it down to being a harmless accident.
40. [40]
    The matter became a police matter when, in August 2020, Jane became upset after a sex education class at school.  An appointment was made with a psychologist and it was during that appointment that details came out concerning Jane seeing the appellant touching Suzanne’s private parts.  That led to the police becoming involved.

Jane’s father’s evidence

41. [41]
    Jane’s father had been away at the time the sleepover occurred.  Sometime later Jane said something to him out of the blue when he and his work colleague were in a car with her.  She mentioned the appellant’s presence at the sleepover; that she was worried the appellant would come over; that he had acted weird and looked at she and Mary funny; and, that he had brushed past and touched her bum.  His work colleague was called and corroborated the evidence concerning that conversation.

Mary’s mother’s evidence

42. [42]
    The mother of Suzanne, Linda and Mary gave evidence.
43. [43]
    She described the off and on relationship between Suzanne and the appellant.  At the time of the sleepover her understanding had been that Suzanne and the appellant had broken up.
44. [44]
    When she dropped the girls off at Suzanne’s place she did not go inside the unit.  She knew that Jane would be there but was not aware that anyone else would be at the unit other than Suzanne and the appellant’s child.  She corroborated Linda’s evidence about being picked up early on the first night of the sleepover.  At the end of the sleepover she picked Mary up and did not go inside the unit.
45. [45]
    She first knew that the sleepover had become a police mater in September of 2020 when a police constable got in contact with her about needing to speak to Linda and Mary.  Police had told her that a girl had been touched on the bum.  She related that to Mary, who became hysterical.  Mary said it was about the appellant and Suzanne touching she and Jane.  She left the conversation at that and took Mary to the police the next day.  She had not spoken to Linda or Mary about the sleepover since they had been spoken to by police.
46. [46]
    In cross-examination she acknowledged that Mary had an intellectual disability which sometimes manifested itself in Mary having blank seizures.  She denied that the disability manifested itself in communication difficulties.  Her difficulties were in getting “from head to paper; paper to head” and not in relation to remembering things.

Suzanne’s evidence

47. [47]
    The last witness to give evidence, on day 4 of the trial, was Suzanne.  She acknowledged that she had certain mental health conditions, namely anxiety, depression, bipolar and intellectual disability.  In 2019 she was taking medication to help control her anxiety and depression.
48. [48]
    She said at the time of the sleepover in 2019 she and the appellant were working on their relationship.  He was living with her at her unit.  She described the relationship between she and the appellant on the one hand and her mother and her stepfather on the other.  She and her mother had an awful relationship but in 2019 saw each other from time to time.  She said that her stepfather did not like the appellant.
49. [49]
    On the night of the sleepover, she said that Linda left early and that Mary and Jane slept in the lounge room and in the appellant’s child’s room.  She denied any sexual activity at the sleepover between her and the appellant in the presence of the children or between the appellant and the children.  She denied any encouragement of the girls to have any indecent interaction with the appellant.  She denied giving any alcohol or drugs to the girls.  She thought the allegations were appalling and disgusting.  She acknowledged that she smoked marijuana with a bong, but said that she did so behind closed doors.

The appellant’s record of interview

50. [50]
    The appellant’s interview with police on 27 August 2020 was played.  He said that he thought that Mary’s mother knew he was staying at the unit, but there was some sort of issue with her stepfather who did not like him.  He recalled that Mary and Jane were dropped off for a sleepover.  He recalled they visited a park during the day and that the girls had slept on a mattress beside his and Suzanne’s bed.  He recalled that at some stage Suzanne had the girls in the bathroom while he was in the shower and they were giggling and pointing at him.  He said did not recall anything else clearly.  He said that Suzanne organizes and controls who comes and goes to their house.
51. [51]
    Jane’s version of events was put to him and he too made relevant denials.

Consideration

52. [52]
    I am not persuaded of the appellant’s argument in favour of ground 1.  The evidence is to be assessed by reference to the High Court authorities referred to in R v Thrupp; R v Taiao; R v Walker; R v Daniels [2024] QCA 134 at [123].
53. [53]
    Such difficulties and discrepancies as there were as between Jane’s evidence and Mary’s evidence on the one hand and that of Suzanne and the appellant in his record of interview on the other were matters explicitly dealt with by each side in closing submissions before the jury.  They were quintessentially jury questions and there is no particular reason why this Court should reach a view contrary to that reached by the jury or conclude that it was not open to the jury to reach the view that it did.
54. [54]
    The appellant’s counsel suggested that the quality of Jane’s evidence in relation to count 4 was not as good as her evidence in relation to count 3.  There is some merit in that suggestion, but not sufficient to justify a conclusion that it was not open to the jury to accept it.
55. [55]
    I accept the respondent’s submission that it was not unreasonable for the jury to accept Jane’s evidence beyond a reasonable doubt not only that she was exposed to the conduct subject of count 3 but that Mary was similarly exposed to that conduct.  The circumstances of the emergence of Jane’s complaint were corroborative of her evidence and supported a conclusion as to its reliability.  Moreover, Mary’s evidence did corroborate the general proposition that the appellant had exposed Jane and Mary to some form of sexual activity between he and Suzanne.  While it is true that Mary’s evidence did not corroborate the details of Jane’s evidence in relation to count 4, given Mary’s obviously immature grasp of what “sex” was, it could hardly be said to be inconsistent with Jane’s evidence.
56. [56]
    Ground 1 fails.

Ground 2

The evidence of the girls being given alcohol or drugs

57. [57]
    I have already mentioned Mary’s evidence concerning alcohol and drugs.  Jane too gave evidence on the use of alcohol.  She told police that Suzanne gave Linda and Mary alcohol.  She thought it was vodka or something that looked like water but was not water.  Mary had one glass and Linda had “like four”.  Linda did not give evidence of having been given any alcohol or of having consumed any alcohol.  Jane did not say that she consumed or was given any alcohol.
58. [58]
    The defence case accepted that the appellant and Suzanne drank alcohol during the sleepover.  I have mentioned that Suzanne denied giving either of the girls alcohol or drugs.  The appellant told police in the interview played to the jury that Jane cannot have alcohol and Mary, although she had previously had a sip of Suzanne’s can “here and there” in the past, did not have any alcohol during the sleepover, that he recalled.

The evidence of the appellant leaving the unit or hiding

59. [59]
    Jane told police: “…when [Mary]’s parents arrived to check up on us and visit um [the appellant] was like just disappearing…”.  She added: “[Mary]’s mum and dad … like drove up to a pathway and then Suzanne was like, my mum and dad are here, you need to go.  And um [the appellant] just ran outside as fast as he can”.
60. [60]
    Mary told police that her parents did not know the appellant was at Suzanne’s unit.  She thought that the appellant “ran out the back and went to the shop” when she and Jane arrived at the unit and knocked on the door.  Once her mother left, the appellant “ran in the back door”.  She said Suzanne always told the appellant to leave or hide.
61. [61]
    Linda said the appellant was hiding when she was dropped off at Suzanne’s unit.  He hid until her mother left.
62. [62]
    The defence answer to that evidence was the appellant’s poor relationship with Suzanne’s parents.  That was supported by the evidence given by Suzanne and her mother.

Consideration

63. [63]
    The respondent submitted and I agree that the evidence of hiding was relevant to properly explain the sequence of events and who it was thought would be at the unit at the material times.  It was also relevant to explain why none of the parents saw the appellant at the unit at the material times.  Jane and Mary gave evidence that the appellant was there at the unit and explained why he would not have been seen.  It was relevant to the jury’s assessment of the competing evidence of the adult witnesses, particularly as between Suzanne on the one hand and the girls’ mothers on the other.
64. [64]
    It was also relevant from the perspective of the appellant’s account to police in his interview as to the nature of his relationship with Suzanne (who he described as controlling most aspects of his life), that he relied on in his own case, in particular as an example of why it was said the jury would accept his account as honest.  Indeed in his counsel’s closing address the issue was turned to his advantage in this way:

“And he was honest about this strange – what you might see as strange, you know, hiding from his parents – from Suzanne’s parents, and him complying with Suzanne’s wishes in relation to that, because otherwise there was yelling and screaming, he said, but also he knew of the difficult relationship he had with [Suzanne’s stepfather]. He doesn’t remember hiding that night, but he said that was often, he said, when her parents turned up, he was told to hide, and he would just comply.”

65. [65]
    Before this Court, the appellant accepted that unless his argument in relation to intoxicants found favour the submissions concerning the evidence regarding hiding would not by themselves justify a finding of miscarriage.
66. [66]
    As to the question of intoxicants the Crown submitted that the evidence that Mary had been given and consumed intoxicants prior to the offences was relevant to properly contextualise the evidence of the narrative of events of Jane and Mary up to and including the offending conduct.  That is, it was led to assist the jury in a determination of principally the credibility but also the reliability of the witnesses.  Indeed in at least one respect the evidence (namely Mary’s evidence that she said that the appellant and Suzanne had threatened to kill her if she didn’t consume alcohol, withdrawn by her at the commencement of the pre-record) operated adversely to one of the complainant’s reliability.
67. [67]
    The trial judge gave a specific direction on the subject.

“You have heard in this trial also evidence that the Prosecution has led and otherwise relied upon, that is, evidence the Prosecution say go to the whole of the circumstances and atmosphere that the children came to stay at that place and also reflecting upon the defendant’s credit. You will recall that the defendant in his interview said something like after returning from the shops:

I probably would have had a smoke like we usually do.

He was not asked and there was no evidence of smoking what, whether it was a drug or some other thing, but there is evidence of [Mary] – from [Mary] of both apparently providing her with a modified bottle of which there was also evidence of such a container being used by [Suzanne] to smoke the drug cannabis. As I said, you need to take care in attributing to the defendant any such conduct since his evidence stopped at simply:

...had a smoke like we usually do.

The second is drinking alcohol and sharing it with the child, [Mary]. The Prosecution rely upon this evidence coming from the children as to that conduct. It is not evidence that is otherwise supported by either the defendant or by [Suzanne]. This type of evidence is relevant to the Prosecution case in this particular way and this way only: it goes, if you accept it, to showing the whole of the circumstances and the atmosphere that the children came to stay in the defendant’s credit.

That is the specific purpose for which the Prosecution has been allowed to lead the evidence and you must not use it for any other purpose. You may not seek to draw some inference from it that because the defendant has been involved in some undesirable conduct or implicated in it by other witnesses that he is, therefore, more likely to have committed the offence you are considering.

In other words, it would be quite wrong for you to say, having heard that evidence, that the defendant is the sort of person likely to have committed the particular offence you are looking at. If you accept this evidence, you may use it only to consider whether it assists the Prosecution in the way that I have described, not to prove its case in respect of the particular conduct of the offence actually being committed.”

68. [68]
    In my view that direction makes it absolutely clear that the evidence of intoxicants could only be used in one way, namely that adverted to by the trial judge.  No other way was permissible including specifically in some propensity way.
69. [69]
    The appellant submitted the direction was not sufficiently strong and that a miscarriage was occasioned when the trial judge failed to indicate that the jury could have no regard to that evidence.  It was suggested that the direction left open the possibility that despite the specific nature of the direction, the jury might have used the evidence in an inappropriate way for example by regarding it as evidence of grooming or of conduct establishing some pre-meditation on the part of the appellant.  I reject that submission for three reasons.  First that was not how the evidence was put during the course of the trial.  No suggestion of grooming was made and it was not referred to during the trial in that way.  Second, as I have already mentioned, the trial judge made it clear that the evidence could not be used for any other purpose than that which he had identified.  The jury could not treat it in the way complained of without ignoring the direction of the trial judge.  Third, there was no objection to the evidence or to the direction, and the obvious forensic justification for the absence of direction was that in some respects the evidence could be used to impeach the inculpatory evidence of Mary.
70. [70]
    The appellant has not established that the failure to give a stronger direction gave rise to a miscarriage of justice.
71. [71]
    Ground 2 fails.

Conclusion

72. [72]
    Neither ground of appeal is established.  The appeal should be dismissed.
73. [73]
    FLANAGAN JA:  I agree with Bond JA.