R v NAH[2024] QCA 170

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P AND BURNS J:  We agree with Dalton JA that the appellant does not succeed on the unreasonable verdicts ground or the jury irregularity ground for the reasons given by her Honour.  The following reasons explain why we have a different view to Dalton JA on the other ground of appeal and have concluded that the appellant also does not succeed on the ground of miscarriage of justice due to a factual misdirection as to the particulars for count 2.
2. [2]
   The prosecutor provided each member of the jury with a copy of the particulars document that was marked for identification “A” at the commencement of the prosecutor’s opening address.  The particulars for count 2 remained unchanged throughout the trial.  The period specified in count 2 during which the maintaining was committed was between 22 May 2001 and 1 May 2003 during which the complainant was aged 10 to almost 12 years old.
3. [3]
   The complainant was the first witness in the trial.  In her evidence in chief, she described the sexual acts that were performed on her by the appellant who was her father.  It included that the appellant would grope her or touch her inappropriately on her bottom and her breasts when no one else was around.  This occurred in the kitchen and in her bedroom.  The complainant was asked to describe what would happen when the appellant touched her breasts.  She said that the appellant would squeeze them and he would “kind of gently touch them” with the finger around the nipple area.  She was around 10 or 11 years old when he started touching her bottom and she “would say 13” when he started touching her breasts.  She also said the appellant would touch her on the vagina “gently at first as if he was almost tickling [her], and then he would start to rub harder, and then he would insert two fingers in [her]”.  The complainant also said the appellant would find a way to get into her bedroom at times and he would rape her from when she was about 10 years old and it occurred a couple of times each week.  She also identified that she was 13 when the appellant commenced to rape her anally.  She explained that she started her menstrual cycle when she was 12, the appellant told her he “didn’t want to have to deal with any mess of any kind”, and he then started to rape her anally instead of vaginally, but occasionally he would still rape her vaginally.  The sexual abuse stopped when she was 17 years old.
4. [4]
   In cross-examination, the appellant’s trial counsel put to the complainant that she had made up the allegations against the appellant (which the complainant denied).  The complainant was not cross-examined specifically on the groping allegations, including her evidence that the touching of her bottom by the appellant started when she was 10 or 11 years old and she was 13 years old when he started touching her breasts.
5. [5]
   The prosecutor in her address to the jury reminded them of the complainant’s evidence.  In relation to the groping, the prosecutor stated:

“The first thing that [the complainant] told you about was her relationship with her father more broadly. She told you that he was emotionally abusive, that he was physically abusive, and that he was sexually abusive. She told you that from the time she was 10 or 11 years of age that the [appellant] would grope her on the bum in the kitchen in the family home. From the time that she was 13, that he would touch her breasts squeezing them and using a finger to gently touch the nipple.”

6. [6]
   The appellant’s trial counsel in his address to the jury did not deal with the detail of the complainant’s evidence in relation to the groping incidents that were particularised for count 2.  The appellant’s trial counsel’s submissions were to the effect that the jury would not believe the complainant, pointing to the inconsistencies and lack of detail in her evidence and the discrepancies in the complaints made by the complainant to others over the years about the appellant’s conduct.
7. [7]
   The evidence and addresses of counsel had been completed by the end of the third day of the trial.  The trial judge gave counsel an opportunity to peruse a document prepared by the trial judge entitled “Elements Sheet” before it was used by the trial judge in the summing up.
8. [8]
   The summing up commenced on the fourth day of the trial with the trial judge referring the jury to the wording of each of the counts set out in the particulars document provided at the commencement of the trial and his Honour took them to the first page of the document to demonstrate to what he was referring.  He referred to count 2 and read out the wording of that count from the particulars document and stated “the particulars set out the acts relied upon by the Prosecution in support of that count”.  At the outset of the summing up, the jury’s attention was therefore directed expressly to the wording of count 2 and the correct statement of the particulars set out in the particulars document:

“And in the course of the relationship the [appellant] engaged in the following conduct with [the complainant]:

• He groped her buttocks (Indecent treatment of a child under 16, under 12)
• He touched/rubbed her on her vagina (Indecent treatment of a child under 16, under 12)
• He inserted his finger/s into her vagina, without her consent (Rape)
• He inserted his penis into her vagina, without her consent (Rape)”

9. [9]
   The trial judge then summarised the evidence adduced in the trial.  He commenced with the evidence of the complainant.  Relevantly for count 2, he reminded the jury of the following:

“You will recall, that in addition to the conduct with which the [appellant] is charged, the complainant in her evidence also alleged that the [appellant], from when she was about the age of 10, would make her perform oral sex on him and that this would happen at least a couple of times a week. She said that from when she was about the age of 12, the [appellant] would perform oral sex on her, but she said she could not be sure how often this happened. She said that from about the age of 10 or 11, the [appellant] would touch her on the bottom, and from about the age of 13, he would touch her on her breasts. She said this would occur when they were in the kitchen when no one else was around. It would also occur when they were in the complainant’s bedroom.”

10. [10]
    The trial judge explained that the prosecution relied on the evidence of the complainant of sexual activity about which she could not be specific as to times or circumstances for the two charges of maintaining a sexual relationship with a child which were counts 2 and 5.  He explained that one of the elements of each count of maintaining which the prosecution must prove beyond a reasonable doubt in order for the jury to find the appellant guilty was that the appellant did an act defined to constitute an unlawful sexual act in relation to the complainant.  He explained how this worked in relation to count 2:

“Unlawful sexual act is defined to mean an act that constitutes an offence of a sexual nature, and so the offences of a sexual nature which the Prosecution relies upon to prove this element of each count relies, insofar as count 2 is concerned, entirely on the acts that the complainant was uncertain about as to times or circumstances: in other words, the uncharged acts.”

11. [11]
    The trial judge dealt with specific aspects of the evidence, including the preliminary complaint evidence (at length), specific directions in respect of some witnesses’ evidence and the issue of delay in the complainant’s making of the complaints against the appellant and the resulting significant forensic disadvantage for the appellant in defending the charges.
12. [12]
    It was at that point in the summing up that the trial judge distributed to the jury the elements sheet which was marked “E” for identification.  He stated that the document was intended to be read in conjunction with the particulars sheet.  There were errors in the elements sheet in relation to count 2 that had been overlooked by the trial judge and both counsel.  Under the heading for count 2, the elements sheet correctly set out the particulars from the particulars document.  It was the section of the elements sheet that set out the definition “unlawful sexual act” for the purpose of element 3 where the trial judge mistakenly referred to “groped the complainant’s breasts” rather than “groped the complainant’s buttocks” as one of the sexual acts relied on by the prosecution and set out on the preceding page of the elements sheet as part of the particulars for count 2.  The content of element 3 for count 2 on the elements sheets was set out as follows:

“The [appellant], as an adult, did an act defined to constitute an ‘unlawful sexual act’ in relation to the complainant.

‘Unlawful sexual act’ means an act that constitutes an offence of a sexual nature which is not authorised, justified or excused by law. In this case the prosecution relies on:

• allegations which the complainant was not specific as to times or circumstances that the [appellant] groped the complainant’s breasts, the [appellant] touched/rubbed the complainant on her vagina, the [appellant] inserted his finger/s into the complainant’s vagina, without her consent and the [appellant] inserted his penis into the complainant’s vagina, without her consent.

Each of the acts which the complainant was not specific as to times or circumstances relied upon by the prosecution as an ‘unlawful sexual act’ involve acts that constitute an offence of a sexual nature.”

13. [13]
    For element 5 of count 2, the elements sheet recorded that “The [appellant] did an unlawful sexual act in relation to the complainant on more than one occasion”.  Then followed three paragraphs in further explanation of element 5, the second paragraph of which also repeated the error under element 3 on the same page:

“In this case the prosecution relies only upon the sexual acts about which the complainant was not specific as to times or circumstances where the [appellant] groped the complainant’s breasts, the [appellant] touched/rubbed the complainant on her vagina, the [appellant] inserted his finger/s into the complainant’s vagina, without her consent and the [appellant] inserted his penis into the complainant’s vagina, without her consent.”

14. [14]
    It should have been apparent to everyone in the courtroom (the jury included) that there was this error in two references to “groped the complainant’s breasts” rather than “groped the complainant’s buttocks” respectively under elements 3 and 5 in respect of count 2 on the elements sheet.
15. [15]
    On the basis of the agreed admission as to the complainant’s date of birth, the trial judge referred to the age of the complainant in relation to the dates applicable to each of the counts and observed she would therefore have been around 10 or 11 when count 2 was alleged to have occurred.  Before the trial judge instructed the jury by reference to the elements sheet on the elements of count 2, his Honour explained the reason for the two counts of maintaining (counts 2 and 5) which covered a continuing period from 22 May 2001 until 22 May 2007, noting that as amendments were made to the Criminal Code (Qld) that took effect on 1 May 2003, count 2 encompassed the period 22 May 2001 to 1 May 2003 and count 5 encompassed the period between 1 May 2003 and 22 May 2007.
16. [16]
    After dealing with the elements of count 1, the trial judge turned to count 2.  The trial judge accurately referred to the four types of conduct particularised, and relied on, by the prosecution in relation to count 2:

“Now, insofar as count 2 is concerned, members of the jury, again by reference to the particulars document, you will see that the Prosecution rely on four types of conduct which the [appellant] is alleged to have engaged in towards the complainant. So the particulars are stated as follows: the [appellant] maintained an unlawful sexual relationship with the complainant, and in the course of the relationship he groped the complainant’s buttocks; he touched, rubbed the complainant’s vagina; he inserted his fingers into the complainant’s vagina without her consent; and he inserted his penis into the complainant’s vagina without her consent.”

17. [17]
    The trial judge referred the jury to the five elements on the elements sheet for count 2 and explained that the prosecution did not rely on either counts 3 and 4 (which were alleged to have occurred between 22 May 2001 and 22 May 2002) or any other charged acts on the indictment for the purpose of proving count 2 and then correctly stated:

“In other words, you need to understand that the Prosecution case, in respect to count 2, relies entirely on the so-called uncharged acts, in other words, the allegations of the [appellant] groping the complainant’s buttocks, the [appellant] touching or rubbing the complainant’s vagina, the [appellant] inserting his fingers in the complainant’s vagina without her consent, and the [appellant] inserting his penis in the complainant’s vagina without her consent, alleged by the complainant in her evidence, that constitutes count 2, maintaining. So it is only in relation to the uncharged acts, none of the specific counts which fall within the maintaining period 22 May 2001 to 1 May 2003, in particular counts 3 and 4, do not form part of the maintaining count.”

18. [18]
    Even though the trial judge had already summarised the evidence of the sexual offending described by the complainant in her evidence and given the jury directions about the uncharged sexual offences, his Honour then proceeded to remind the jury of the complainant’s evidence by reading out her evidence from the transcript which he explained was to assist the jury in understanding the elements of each of the maintaining counts.  The trial judge proceeded to read the evidence in chief of the complainant about the uncharged acts including the evidence about the appellant’s touching her bottom from when she was around 10 or 11 years old and that she would say she was 13 years old when he started touching her breasts.  (On that evidence the allegation of groping the breasts did not commence until after the period particularised in count 2.)  At the conclusion of reading that evidence, the trial judge observed:

“So that was the complainant’s evidence-in-chief, members of the jury, insofar as sexual acts which she alleges were perpetrated upon her by the [appellant], which she was not specific as to times or circumstances, but her evidence included how old she was when those particular acts commenced.”

19. [19]
    After explaining that neither counts 6 and 7 nor the allegations of uncharged acts that occurred at the same time as the conduct alleged for counts 6 and 7 could be considered by the jury in respect of count 2 or count 5, the trial judge took the jury through the elements of count 2.  It is apparent from the manner in which that part of the summing up was delivered that the trial judge was reading from the elements sheet.  His Honour stated in respect of element 3:

“Element 3, and this is the – one of the elements which is in dispute – the [appellant], as an adult, did an act defined to constitute an unlawful sexual act in relation to the complainant. You will see that unlawful sexual act means an act that constitutes an offence of a sexual nature which is not authorised, justified or excused by law. In this case, the Prosecution, again, relies upon allegations which the complainant was not specific as to times or circumstances, that the [appellant] groped the complainant’s breast and that the [appellant] touched or rubbed the complainant on the vagina, the [appellant] inserted his finger or fingers into the complainant’s vagina without her consent and the [appellant] inserted his penis into the complainant’s vagina without her consent.”

20. [20]
    That passage (with the incorrect reference to “groped the complainant’s breast”) was the content from the elements sheet for element 3 of count 2.  It was immediately followed by a direction to the jury that brought the jury’s attention to the “particularised uncharged acts relied upon by the Prosecution in proof of count 2”:

“Now, I direct you, members of the jury, that each of those acts which the complainant was not specific as to times or circumstances, relied upon by the Prosecution as an unlawful sexual act, involve acts that constitute an offence of a sexual nature. So there is – so you can accept for the purposes of count 2 that the particularised uncharged acts relied upon by the Prosecution in proof of count 2 are offences of a sexual nature.”

21. [21]
    The trial judge briefly referred to element 5 in terms that “the [appellant] did an unlawful sexual act in relation to the complainant on more than one occasion”.  His Honour explained that the prosecution must prove each of the five elements comprising count 2 beyond a reasonable doubt in order to find the appellant guilty, stating:

“If you are satisfied, having regard to the complainant’s evidence, that the [appellant] did the acts particularised, that those acts constitute offences of a sexual nature – which, again, there is no real dispute about – and that the [appellant] maintained an unlawful sexual relationship, as that term is defined in element 4 and 5, then, you would find the [appellant] guilty of count 2.”

22. [22]
    In that explanation, the reference to “the acts particularised” could only be taken by the jury to be the acts particularised for count 2 on the particulars documents which had been in the possession of the jury since the commencement of the trial and was repeated on the first page of the elements sheet for count 2 before the errors made on the elements sheet in dealing with elements 3 and 5.  The trial judge noted that it was not necessary for all jurors to be satisfied about the same unlawful sexual acts and then read out the second and third paragraphs of the further explanation under element 5 of count 2 on the elements sheet, repeating the error in the second paragraph:

“In this case, the Prosecution, again, as I have explained it to you, relies only upon the sexual acts about which the complainant was not specific as to times or circumstances where the [appellant] groped the complainant’s breast, the [appellant] touched or rubbed the complainant on the vagina, the [appellant] inserted his finger or fingers into the complainant’s vagina without her consent, and the [appellant] inserted his penis into the complainant’s vagina without her consent. You should only convict the [appellant] on the basis of the evidence of the alleged acts, of which the complainant was not specific as to times or circumstances if, after carefully scrutinising the evidence of the complainant, you are satisfied beyond a reasonable doubt that the [appellant] did these acts during the period alleged in the indictment, that is, the period 22 May 2001 and 1 May 2003.”

23. [23]
    Immediately following that repeated explanation about the uncharged acts relied on to prove count 2 that incorrectly referred to “groped the complainant’s breast”, the trial judge reminded the jury again that there were two counts of maintaining, with count 5 commencing when count 2 ended, and stated without any error:

“The complainant’s evidence, which I have reminded you about, was to the effect that from the age of 10, in some respects, and from the age of 13, in respect to other matters, that the [appellant] had engaged in various forms of sexual abuse upon her. And her evidence, which I have reminded you about, was as to the regularity of those incidents occurring. Now, you will therefore understand from the complainant’s evidence that what she alleges commencing, for example, when she was 10 years of age, extended beyond the period alleged in count 2 and continued into the period alleged in count 5. In other words, the offending continued on beyond the end date of count 2.

However, in order to find the [appellant] guilty of count 2, if you are satisfied beyond a reasonable doubt that the [appellant] engaged in the acts particularised, you must also be satisfied that the acts occurred in the period alleged in count 2. Again, the period 22 May 2001 and 1 May 2003. It would not be a basis to find the [appellant] guilty of count 2 if ultimately you are persuaded that the sexual offending did occur but it only commenced after the end date of count 2. In other words, in order to find the [appellant] guilty of count 2, the acts relied upon by the Prosecution must have occurred in the period alleged in the charge. So you need to bear that in mind when you come to examine the evidence.”

24. [24]
    No redirections in respect of the content of the summing up were sought by counsel after the summing up concluded.
25. [25]
    There were jury notes sent when the jury was deliberating.  It is not surprising that there was no query about the discrepancies between the particulars for count 2 as to the groping of the complainant’s buttocks and the reference in elements 3 and 5 of count 2 on the elements sheet to the groping being of the complainant’s breasts.  The elements sheet was not independent of, and was intended to be read with, the particulars document.  The trial judge’s repeated references to the particulars for count 2 in the particulars document and reminders of the complainant’s evidence that she would have been 13 when the groping of her breasts commenced made patent the error in the elements sheet that referred to groping of the complainant’s breasts in relation to count 2.  The particulars of each count had been clear from the commencement of the trial, so that clarification of the obvious mistakes made by the trial judge in the summing up was not needed by the jury.
26. [26]
    This was a lengthy summing up that was repetitive.  The mistakes made in the elements sheet that were repeated when those parts of the elements sheet were read out by the trial judge lost any significance when there were numerous reminders by the trial judge in the summing up of the correct particularisation of the groping of the complainant’s buttocks as one of the four types of unlawful sexual acts relied on by the prosecution for the purpose of count 2.
27. [27]
    There was no miscarriage of justice as a result of the misstatements by the trial judge in the course of the summing up that were clearly mistakes in the context of how the prosecution had particularised count 2, the complainant’s evidence relevant to count 2 and the correct directions that were given on the same topic in the summing up.  The appeal against conviction must be dismissed.
28. [28]
    It is therefore necessary to deal with the sentence leave application.  The terms of s 229B of the Code that applied to the appellant’s trial on count 2 were affected by reforms effected by provisions of the Criminal Code (Child Sexual Offences Reform) and Other Legislation Amendment Act 2020 which commenced on 15 September 2020.  The relevant provisions of s 747 of the Code are as follows:

“(1) Section 229B as in force on the commencement of this section applies, and is taken always to have applied, during the following periods—

…

2.  the period starting on the commencement of the 1997 amendment and ending immediately before the commencement of the 2003 amendment.

…

3.  For applying section 229B under subsection (1)(b), the section applies, and is taken always to have applied, as if—

1.  the maximum penalty under section 229B(1) were—

1.  if in the course of the unlawful sexual relationship the adult committed an unlawful sexual act for which the adult is liable to imprisonment for 14 years or more—life imprisonment; or

2.  otherwise—14 years imprisonment; and

2.  the reference in section 229B(10), definition offence of a sexual nature to an offence defined in section 210 (other than section 210(1)(e) or (f)), 215, 222, 349, 350 or 352 included a reference to an offence—

1.  defined in a provision of this Code as in force from time to time before the commencement of the 2003 amendment; and

2.  constituted by an act that would, if committed on the commencement of this section, constitute an offence defined in a section mentioned in that definition.

4.  If an adult has been charged, before the commencement of this section, with committing an offence against section 229B over a period that includes any part of a period mentioned in subsection (1)(a) or (b), subsection (1) does not apply in relation to the period the subject of the charge for—

1.  the proceeding for the offence; or

2.  any appeal against a conviction or sentence for the offence.

5.  Also, section 229B as applied under subsection (1) does not apply in relation to an act done during a period mentioned in subsection (1)(a) or (b) if, before the commencement of this section, the act was the subject of a charge of an offence, whether or not the charge was finally dealt with.

6.  In this section—

…

1997 amendment means the Criminal Law Amendment Act 1997, section 33.

2003 amendment means the Sexual Offences (Protection of Children) Amendment Act 2003, section 18.”

29. [29]
    We agree with Dalton JA that s 747(3) of the Code created a circumstance of aggravation as defined in s 1 of the Code that required endorsement as part of count 2 for the prosecution to rely on the maximum penalty of life imprisonment for count 2.  We reject the respondent’s alternative argument that the usual maximum penalty for an offence against s 229B of the Code is life imprisonment and that the effect of s 747(3)(a) is to provide for a reduced maximum penalty of 14 years’ imprisonment when s 747(3)(a)(i) does not apply, as that s 747(3)(a)(i) does not provide for a circumstance of aggravation.  That submission overlooks that the purpose of s 747(3) is to modify the application of s 229B when the offence that is charged was committed during the period specified in s 747(1)(b).  The maximum penalty of life imprisonment that otherwise applies for s 229B before the modifications made by s 747(3)(a) is therefore not the starting point when s 747(1)(b) applies.
30. [30]
    We also agree with Dalton JA that it was not for the trial judge to ignore the circumstance of aggravation that was part of count 2 and on which the appellant was arraigned and pleaded not guilty.  Unless it had been the subject of a nolle prosequi before the jury commenced their deliberations, the jury was bound to return a verdict on the circumstance of aggravation.  We also agree with Dalton JA that it is not for a trial judge unilaterally to decide not to take a verdict in respect of a circumstance of aggravation on which the defendant in the trial has been arraigned without hearing submissions from the prosecutor and the defendant’s counsel on the appropriate course in the particular trial.
31. [31]
    The maximum penalty that applied to count 2 in the circumstances where the jury was not asked to return a verdict on the circumstance of aggravation was imprisonment for 14 years.  The sentencing judge made an error of law in sentencing the appellant on the basis that the maximum penalty for count 2 was life imprisonment.  It is therefore necessary for this Court to resentence the appellant, unless in the separate and independent exercise of the sentencing discretion, we conclude that no different sentence should be passed: Kentwell v The Queen (2014) 252 CLR 601 at [35].
32. [32]
    At the hearing of the sentence leave application, the appellant’s counsel submitted that this Court in exercising the sentencing discretion afresh should substitute a sentence of imprisonment of 10 years for count 2 in lieu of the sentence of 11 years imposed by the trial judge.  Despite the appellant’s counsel being cognisant that the jury was not asked to return a verdict in respect of the circumstance of aggravation for count 2, the appellant’s counsel accepted that the appellant should be resentenced on the facts as the trial judge found them and did not seek to controvert the fact finding made by the trial judge, including that his Honour accepted the complainant’s evidence that she was regularly raped (penile/vaginal) during the period to which count 2 applied.  The appellant’s counsel conceded that s 747 and s 748 of the Code read together did not preclude the sentencing court from being satisfied by the complainant’s evidence that the appellant committed the penile/vaginal rapes of which she gave evidence in respect of the period the subject of count 2.  The respondent’s counsel joined in that submission as to the effect of s 747 and s 748.
33. [33]
    On 19 July 2024, the Registry communicated with both parties at the request of the members of the Court seeking further written submissions on the question of how the factual basis for sentence was open to the trial judge when the question of whether the appellant raped the complainant was before the jury in the circumstance of aggravation where no verdict was taken on the circumstance of aggravation.  In response to this request, written submissions were received on 12 August 2024 from new counsel on behalf of the appellant, Mr Greggery of King’s Counsel, and written submissions were received on 22 August 2024 from Ms Dennis of Counsel on behalf of the respondent.
34. [34]
    Mr Greggery sought leave to withdraw the concession that had been made by senior counsel who had represented the appellant at the hearing of the appeal that the factual basis for this Court to re-exercise the sentencing discretion should be as the trial judge had found it to be.  We infer that the request to withdraw the concession has been made with the appellant’s instructions after further advice has been provided to him.  In those circumstances and also where the concession related to a question of law, the leave to withdraw that concession should be given.
35. [35]
    Our view, however, is that the submission that was made by both counsel at the hearing of the appeal that it was for the trial judge to make the factual findings for sentencing on the basis of the evidence adduced at the trial is correct due to the sui generis nature of the offence of maintaining.  The gravamen of the offence under s 229B of the Code is the maintaining of the unlawful sexual relationship.  Subject to the modifications made to s 229B by s 747 of the Code, s 748(2) of the Code provides:

“A proceeding for the offence may be started, and the person may be convicted of and punished for the offence, as if section 229B had always applied in the way provided for under section 746 or 747.”

36. [36]
    Under s 229B(1) of the Code, any adult who maintains an unlawful sexual relationship with a child under the age of 16 years commits a crime.  Relevantly subsections (2)-(4) provide:

“(2) An unlawful sexual relationship is a relationship that involves more than 1 unlawful sexual act over any period.

3.  For an adult to be convicted of the offence of maintaining an unlawful sexual relationship with a child, all the members of the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship with the child involving unlawful sexual acts existed.

4.  However, in relation to the unlawful sexual acts involved in an unlawful sexual relationship—

1.  the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and

2.  the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence; and

3.  all the members of the jury are not required to be satisfied about the same unlawful sexual acts.”

37. [37]
    Under s 229B(2), an unlawful sexual relationship is a relationship that involves more than one unlawful sexual act over any period.  The proof of the offence is facilitated by s 229B(4)(c) which provides that in relation to the unlawful sexual acts involved in an unlawful sexual relationship “all the members of the jury are not required to be satisfied about the same unlawful sexual acts”.  As explained in R v CAZ [2012] 1 Qd R 440 at [44]-[45], the legislative purpose underlying s 229B was to overcome the effect of the decision in KBT v The Queen (1997) 191 CLR 417 and to facilitate the proof of the offence where children are unable to recall sufficient details of the specific offences committed in the course of the relationship to enable the prosecution to supply those particulars that might be required in charges of specific sexual offences.  Fraser JA (with whom Chesterman and White JJA agreed) noted (at [54]) that because jurors might differ about which unlawful sexual acts are proved and which are not, a verdict of guilty may require a trial judge to make significant findings of fact in the sentencing process.  See also Henry v The Queen (2022) 141 SASR 230 at [26]-[28].
38. [38]
    Having regard to s 747(3) of the Code, the pleading of the allegation of rape in the course of the relationship between the appellant and the complainant that comprised the circumstance of aggravation for count 2 was for the purpose of setting the maximum penalty for the offence as life imprisonment and not for the proof of the offence of rape as an essential element of the offence of maintaining.  The statement by this Court in numbered paragraph 2(c) in R v D [1996] 1 Qd R 363 at 403 may suggest otherwise, but the analysis in that decision was not concerned with  the fact-finding role undertaken by a trial judge in relation to a verdict of maintaining after s 229B had been amended to its current form where the jury members do not have to agree about the same unlawful sexual acts.
39. [39]
    The trial judge summarised in the sentencing remarks the factual basis for the sentencing of the appellant:

“In short compass, you are to be sentenced on the bases that you maintained an unlawful sexual relationship with your natural daughter when she was between the ages of 10 and 11 in the period the 22^nd of May 2001 to the 1^st of May 2003 by touching her on the buttocks regularly, by touching and rubbing her on the vagina regularly, by inserting your fingers into her vagina without her consent at least once per week and inserting your penis into her vagina without her consent at least once per week.”

40. [40]
    The trial judge had regard to the principles applicable to sentencing for the offence of maintaining set out by Jerrard JA in R v SAG (2004) 147 A Crim R 301 at [19].  The trial judge noted the appellant was being sentenced after trial, the age of the complainant during the period applicable to count 2, the offending occurred over a period of almost two years, it involved penile rapes and the offending was committed in the context of the protective relationship that existed between the complainant and the appellant as her natural father.  The sentencing judge noted the offending “has had long lasting and devastating impacts” upon the complainant.  The difference between the parties at the hearing of the appeal as to the appropriate sentence for count 2 on the resentencing was that the appellant submitted that imprisonment of 10 years would still be within range for count 2 (but concedes that 11 years’ imprisonment would also be within range) and the respondent submitted that, even sentencing on the basis of a maximum penalty of 14 years’ imprisonment, the sentence of 11 years’ imprisonment for the appellant’s offending remains the appropriate sentence.  Both parties referred to the observations made by Mackenzie AJA in R v TS [2009] 2 Qd R 276 at [39] in relation to maintaining offences committed by fathers or stepfathers where the offending lasted over periods of years and involved rapes:

“The cases generally and others particularly referred to by counsel, some of which were pleas of guilty and some of which involved a late plea or a plea of not guilty, reveal a diversity of outcomes, but generally between 10 to 15 years.” (footnote omitted)

41. [41]
    As the appellant is being sentenced for an offence of a sexual nature committed in relation to a child under 16 years, s 9(4)(a) of the Penalties and Sentences Act 1992 (Qld) is applicable.  Even with regard to the maximum penalty of 14 years’ imprisonment for count 2, the regularity, nature and period of the appellant’s offending found by the trial judge makes imprisonment for 11 years the appropriate sentence for the appellant after trial.  Although leave to appeal against sentence should be granted on the basis of the error of law made by the trial judge, as the sentence we would impose on resentencing for count 2 is the same as that imposed by the trial judge, the outcome must be that the appeal against sentence is dismissed.
42. [42]
    The orders which should be made are:

1. Appeal against conviction dismissed.
2. Application for leave to appeal against sentence granted.
3. Leave to the appellant to withdraw the concession made on his behalf at the hearing of the appeal that the resentencing should proceed on the facts found by the trial judge.
4. Appeal against sentence dismissed.

43. [43]
    DALTON JA:  This is an appeal against conviction and an application for leave to appeal against sentence.  The appellant was charged with 11 counts of sexual offending against his biological daughter over a period of about seven years when she was aged 10–17 years old.  Because one of the grounds is that the verdict was unreasonable, it will be necessary to discuss the detail of each count below.  For present purposes it is sufficient to note that there were two counts of maintaining (counts 2 and 5) and nine counts of individual offending.  The individual counts were all of sexual offending except count 10, which was a count of common assault said to have taken place when the complainant refused to participate in the sexual offending the appellant proposed.  Two counts of maintaining were charged because on 1 May 2003 amendments were made to the statutory definition of the offence.  But for that change, there would only have been one count of maintaining.  As it was, count 2 alleged maintaining between 22 May 2001 and 1 May 2003, and count 5 alleged maintaining between 1 May 2003 and 22 May 2007.
44. [44]
    The trial took place at the end of 2022, a considerable time after the alleged offences.  It was acknowledged by the prosecutor below, and on appeal, that the prosecution case depended on the credit of the complainant.  Her mother gave some evidence which was capable of providing some support to the complainant’s version of events, although it was not without its difficulties in that regard.  There were several preliminary complaints made in 2014 and 2015 which were capable of supporting the complainant’s credit generally, although the defence case capitalised on significant inconsistencies between some of them and the detail of the complainant’s evidence.  There was evidence of an objective kind which corroborated the complainant’s evidence that her father was controlling of her as a child in a way which was unusual and unacceptable, and that he was nasty to her.  This was relied upon by the Crown as relationship evidence, capable of being used by the jury to understand why the complainant might have suffered six years of what she said was extensive abuse at the hands of the appellant before finally leaving home, aged 17, together with her mother.

Verdicts and sentence

45. [45]
    The jury did not agree upon any unanimous verdicts.  Majority verdicts were reached on five counts.  The jury verdicts were guilty on count 2 (the earlier maintaining) and common assault (count 10).  Verdicts of acquittal were returned in relation to three sexual offences (counts 1, 6 and 9).  In relation to the remaining counts (3, 4, 5, 7, 8 and 11) the jury was unable to reach a verdict.  The trial judge sentenced the appellant to 11 years imprisonment on count 2 and six months imprisonment on count 10.  The sentences were concurrent.

Conviction

46. [46]
    There were three grounds of appeal in relation to the convictions.  It was said that the jury was instructed in a factually inaccurate way which permitted them to return a verdict on count 2 in reliance upon acts which were not particularised by the prosecution in proof of that count, and of which there was no evidence.  Secondly, it was said there was a miscarriage of justice because a juror or jurors disobeyed a direction not to have recourse to external sources of information when considering their verdicts.  Thirdly, it was said that the verdicts of guilty were unreasonable.  In accordance with dicta in AK v Western Australia,^[1] I will consider the third ground of appeal, unreasonable verdicts, first.

Unreasonable verdicts

The complainant’s evidence

47. [47]
    The complainant grew up in an unhappy household with her parents and a brother.  Her father was physically violent towards her and emotionally abusive.  He belittled her and verbally criticised her.  He smacked her when she was young, up to 20 times on one occasion; enough to make her bleed on another.  On a couple of occasions, he slapped her face.  From the age of 10 or 11 the appellant would touch her bottom in the kitchen or other public areas of the house when no-one was around.  From the age of 13 he also touched her breasts in the kitchen.  He would touch her bottom and breasts in her bedroom; she was not asked when this type of touching occurred.  From age 10, he would demand that she masturbate him to ejaculation.  From about the same age he would require her to perform fellatio on him and she thought that the masturbation and fellatio occurred “at least a couple of times a week” – T1–19.  From age 12 he would perform cunnilingus on her.  The masturbation and oral sex occurred in her bedroom.  From the age of 10 he would touch her vagina (by which term she probably meant her vulva) and then he would insert two fingers into her vagina.  She thought this happened consistently “more than once a week” – T1–20.  From age 10 he would insert his penis into her vagina without her consent.  She thought this happened “a couple of times a week” – T1–20.
48. [48]
    She began menstruating at age 12 and after that, at age 13, the appellant would anally rape her rather than vaginally rape her.  He said he did not want to have to deal with “any mess of any kind” – T1–20.  He made that comment a week or two after she began menstruating.  He would anally rape her “quite a few times a week” – T1–21.  He did occasionally vaginally rape her after she began menstruating.  Her mother was a shift worker and often worked nights, so that she was rarely home when these assaults occurred.
49. [49]
    The abuse stopped when the complainant was 17 years old, after a particular occasion of abuse.  The appellant came in to her bedroom and shut the door; he yelled at her, called her names and demanded that she perform fellatio.  She refused.  He forced her into a kneeling position on the ground in front of him, undid his pants and then demanded fellatio, saying that if she did not comply he would kill her.  When she still did not comply he pulled her up and put her against the wall, with her face on the wall.  Then he turned her around and screamed into her face.  He grabbed her neck and applied pressure.  He kept squeezing until she felt her oxygen was running out and feared she would end up dead.  He smelt of alcohol, as he often did when he abused her.  After that, she complied with his demand and performed fellatio upon him while he all the time insulted her.  He pushed her head onto his penis so that she felt he wanted her to choke.  About a week after this, she left home, aged 17, in or around April or May.  Her mother left with her, first to a caravan park and then to Western Australia.
50. [50]
    The evidence summarised above was the general evidence relied upon for the two maintaining counts (counts 2 and 5) as well as the common assault count (count 10, choking) and the oral rape count occurring very shortly thereafter (count 11).  The verdicts on these counts were guilty on count 2 (22 May 2001 – 1 May 2003); no verdict on count 5; guilty of common assault, and no verdict on count 11.
51. [51]
    The complainant gave evidence of five other specific occasions upon which the appellant sexually assaulted her (counts 1, 3, 4, 6, 8 and 9).  Counts 3 and 4 were alleged to have taken place during the period of maintaining charged at count 2.  Counts 6 and 7 were alleged to have taken place over a period which included part of the period of maintaining alleged at count 2.  Counts 8 and 9 were outside the period of maintaining alleged at count 2.  The Crown specifically disclaimed reliance upon the acts alleged at counts 3, 4, 6 and 7 as being particulars of the maintaining alleged at either count 2 or count 5.  The allegation of conduct at count 1 was outside both maintaining periods, so it could not have been relied upon as a particular of either of the maintaining counts.
52. [52]
    I have already detailed the complainant’s evidence in relation to the last sexual assault and associated common assault (counts 10 and 11).  I will now detail the evidence in relation to the other seven individual offences with which the appellant was charged.
53. [53]
    Count 1 was the first in time.  It was charged as indecent treatment having taken place between 22 May 1997 and 22 May 1999.  The complainant said that the family had a dog named Misty and that when she was about seven she was outside in the garden playing with the dog.  Her father came over and dragged Misty by the neck so that the dog was positioned in front of the complainant’s crotch area.  He let the dog smell her, then removed her shorts and underwear and put the dog’s face onto her vulva so that the dog could lick her.  After this her father released the dog and walked away from her.  She went inside to the shower.  The jury’s verdict on this count was acquittal.
54. [54]
    Counts 3 and 4 were alleged to have occurred on the first occasion the complainant could remember being assaulted in her bedroom.  She was 10 years old.  It was late at night, she was trying to sleep.  Her father came into the room and stroked her hair and gave her a kiss on the forehead.  Then he got into bed next to her and started to cuddle her.  He sat her up and took her top off.  He was naked.  He rubbed his hands on her chest^[2] and then took off her pyjama pants and started to rub her vulva.  He then put two fingers into her vagina.  She remembered that at the end of the assault there was blood on his index and ring fingers.  She was not sure if there was blood on her underwear or on the bed.  She did not recall her mother asking about blood on her clothing or bedding.
55. [55]
    She was in pain and confused.  She could hear her father moaning.  He lay her down on the bed and inserted his penis into her vagina.  He was crouched over the top of her, holding onto the bed to stabilise himself.  She felt excruciating pain and she felt sick.  He called her his “little princess” and said that this was their “little secret”.  She did not know whether he ejaculated, although her evidence was that on other occasions he did ejaculate inside her.  The jury could not reach verdicts on these counts.
56. [56]
    The complainant remembered another specific occasion of assault which was the subject matter of counts 6 and 7.  It was associated with her watching “Big Brother” on TV in her bedroom.  She said that as she watched the television she was masturbating and then realised that her father had entered the room and was standing there watching her.  He said that he would show her how to do it.  He took off her top and then began kissing and touching and groping her breasts.^[3]  He took off her underwear rubbed her vulva and put his fingers in and out of her vagina “aggressively”.  He then put his head down and performed cunnilingus on her.  The jury acquitted on count 6, and reached no verdict on count 7.
57. [57]
    Count 8 was a charge of anal rape.  The complainant went in to have a shower in the family bathroom and fell asleep in the shower causing the bathroom to flood.  Her parents were angry with her.
58. [58]
    Later that evening her mother was at work and her father came into her bedroom.  Her father was very angry with her and said that because she had flooded the bathroom she had to be punished.  She was lying on her side.  He flipped her over so that her back was facing him and then came up behind her and put his penis into her anus.  She felt a lot of pain, stinging and burning.  Her father called her a whore, a bitch and a slut, and told her that she deserved everything she got.  At the end of the rape he told her that if she ever told anyone he would kill her.  The jury reached no verdict on this count.
59. [59]
    The complainant thought she was about 13 at the time of the “Big Brother” incident and about 15 at the time of the flooded bathroom incident.
60. [60]
    When she was 16 she had an operation for scoliosis of the back.  Having come home from Brisbane where the surgery was performed, she was in her bedroom, in bed wearing pyjamas, when her father entered the room and put his hand over her mouth.  He told her to be quiet.  He put her onto her side with her pants down.  He was naked.  He anally raped her.  He was holding her hair and he had his leg pushing into her back.  She was “groggy” and “high” on pain medication because of her surgery.  She felt burning and stinging pain from the rape and her back felt like it was being crushed by his leg.  It felt as though he was ripping her hair.  He stopped, got up and walked out the door.  He said something along the lines of, “if you ever tell anybody about this, I will kill you”.  This was the subject matter of count 9.  The jury acquitted on this count.
61. [61]
    The complainant said that after she and her mother left the family home and went to Western Australia, she told her mother that her father had sexually, physically and emotionally abused her.  She did not tell her mother any details of the abuse.  She told her childhood friend the same thing, and again did not remember giving any specific details.  She told one of her aunts after she had moved back from Western Australia when she was about 21.  She told her details including that her father would rape her vaginally, touch her inappropriately, make her masturbate him and perform fellatio upon him.  This information was relayed over a series of conversations.  She told her uncle much the same thing when she was about 24 years old.  Although she had conversations with him, it was difficult for her to tell him, so she wrote him a letter.
62. [62]
    When she was about 19 or 20 she told a boyfriend that her father had sexually, mentally, emotionally and physically assaulted her, but did not give any specific details.  This was during a relationship she had in Western Australia.
63. [63]
    She told another ex-boyfriend about the incident with the family dog.  She put that conversation as having happened when she was about 29 years old.  She also told that man that her father had physically, sexually and emotionally abused her, but did not recall that she gave him any specific detail of the abuse.
64. [64]
    In cross-examination the complainant gave details that her childhood was unhappy and that her father disciplined her “wrongly”.  He would constantly express his disgust at the state of her room when in fact it was “not that untidy”.  She suffered from anorexia as a child but that condition resolved.  Both her parents pushed her to have an operation for the scoliosis of her back and she was unhappy about that and “blamed both of them” as a result.  She still had ongoing back pain after the surgery, although she no longer had to wear a brace.  She resented her father for all the things he did to her, including physical discipline.  She did not like the fact that he took her to school at 4 or 5 in the morning because he was the school groundsman and started work early.
65. [65]
    Photos were shown to the complainant of the area she said was the location of the offence charged at count 1.  She agreed that the photographs showed there was a bus stop nearby, and vision to the front yard and driveway from the road in front of the house.  She said that at the time of the offending there was a garden and grass between the location of the offending and the road.  She thought she had pubic hair at the time of this incident even though she was six or seven, but when pressed on this issue she said she could not recall.  In her police statement she had said “I had pubic hair at this time, so maybe I was older” and she acknowledged that that statement was true.  In her police statement about this incident she said that the appellant took her underwear and shorts down at the same time, but in her evidence she said that she took her shorts and underwear off separately.  She explained that she had been confused when making the statement to the police and that there were two separate actions by the appellant.
66. [66]
    Cross-examination concentrated on the large number of times which the complainant said had been occasions of abuse.  The complainant did not resile from her evidence that there were many occasions of abuse.  She denied that the allegations she made against her father were lies and fantasy.  She denied that she had made up the occasion when the bathroom flooded.
67. [67]
    The complainant acknowledged that she had made a 24 page handwritten statement, she thought in 2015, before going to the police.
68. [68]
    In the handwritten statement the complainant had written, “he did rape me.  He only fully raped me a couple of times, but continued other sexual acts on me until I left at age 17.”  It was put to the complainant that this was inconsistent with her evidence, and showed an expansion and exaggeration of her story over time.  She denied that, but offered no explanation of the contradictory statement except that it had been made a long time ago.
69. [69]
    The handwritten statement speaks of the complainant trying to build a case against her father and she acknowledged that she did that, including speaking to others to try to have them support her allegations.  The statement also spoke of her forcing herself to remember things which had happened.  She explained that that was because she had suppressed memories.  She acknowledged that some people she spoke to did not support her and that she was angry with her mother because her mother did not “stand by her child”.  When her mother did not support her allegations she stopped talking to her mother.  She considered that her mother was neglectful.
70. [70]
    In the handwritten statement the complainant made no mention of anal sex.  Nor did she mention that in a domestic violence application which she made against her father in August 2015.  In the domestic violence application she describes the appellant strangling her and said “for years afterwards I still had marks around my neck from where he had tried to strangle”.  These marks were around the centre of her neck where her windpipe is.  They looked like a bruise.  The complainant conceded that in two photographs taken around that time it was hard to see any marks on her neck.  She denied that her allegation of strangling by the appellant was a lie.
71. [71]
    She had difficulty making eye contact with people.  The complainant denied that she was putting on an act when she came to court, walking with her head down not looking at anybody.  She was shown a video posted on Facebook where she did not behave that way.  She admitted that she had had people take photographs of her where she appeared normal.  She explained this by saying that it was different to look at a camera than look at people.
72. [72]
    The complainant acknowledged that her police statement in relation to the “Big Brother” occasion did not involve any allegation of oral sex.  She denied that she was making her evidence up but said “I’m having flashbacks.  I’m remembering things.”

Other Crown witnesses

73. [73]
    The complainant’s uncle and aunt gave evidence.  The aunt first met the complainant after she and her mother had moved out of home and were living in a caravan park prior to moving to Western Australia.  When the complainant moved back to Queensland from Western Australia, there was a period of time when she occasionally stayed at her aunt and uncle’s place because she was having difficulty finding accommodation.  Her aunt suggested she could possibly live with her brother.  The complainant was not agreeable to this and said that her brother had touched her in a sexual manner.  As a result of that disclosure, the aunt asked the complainant whether her father sexually abused her also.  She said that he compelled her to perform oral sex on him and that he performed oral sex on her.  They had a series of conversations about this.  In one conversation the complainant told her aunt that he had “had full sex with her” but that it stopped once she got her period.  The complainant had said that it would happen when her mother was working nights at a nursing home.
74. [74]
    The complainant’s aunt said that when she met the complainant she was taken aback at how the complainant was not able to make eye contact with people and was extremely shy, withdrawn and lacking in social skills.  This was to the extent that people who met the complainant thought she was blind.  She could not recall any mark on the complainant’s face or neck.
75. [75]
    The complainant’s uncle gave evidence that the complainant was very controlled when she was young and was “always looking down, very constrained”.  He thought that the appellant was angry with the complainant all of the time; made her wait at the table to eat everything on her plate, sometimes until midnight, and was always talking about her in a derogatory way.  He thought that in 2014 and 2015 the complainant told him that the appellant had been sexually inappropriate with her since she was “a little kid” up until about the age of 16 or 17.  She said that this involved intercourse and oral sex.
76. [76]
    The complainant’s uncle did not like the appellant, and there had been a family dispute about the terms of their mother’s will.
77. [77]
    An ex-boyfriend of the complainant was called.  They met just before 2014.  He was a photographer, and he took photographs of the complainant.  They both lived in Western Australia.  She told him that her father had sexually abused her; abused her in other ways, and that she did not want to have anything to do with her father.  She gave no specific details of the abuse.  She would become very upset and distant if these topics were broached.  She said the abuse occurred throughout her childhood until she finally left the house to live by herself, and then her mother joined her.  She said that her mother worked night shifts and that is when the abuse happened.
78. [78]
    The complainant’s mother gave evidence.  She worked as a domestic at a local nursing home from the time the complainant was about six.  She worked various shifts as a casual.  She became a permanent employee when the complainant was about 10.  She would then often work from 6.00 am to 2.30 pm but was doing night shifts as well from 10.00 pm to 6.00 am.  When the complainant developed scoliosis she tried to work more night shifts so that she could be with her during the day.
79. [79]
    The appellant yelled and screamed a lot which she observed intimidated the complainant when she was very young.  She observed that the complainant became very anxious and would cry and scream herself.  As she grew older, she observed the complainant became more nervous.  The appellant was a very strong disciplinarian.  He yelled, screamed and smacked the complainant very hard.  At one point he smacked her so hard there was bleeding from or on her bottom.  This would have been when the complainant was about six.
80. [80]
    She could recall one incident when the complainant was about 13.  It was a hot day and the complainant generally had an afternoon nap.  The appellant told the complainant to go and have a nap.  Apparently because of the heat, he told her to lay down on her bed with no clothes on.  She said that normally the complainant would close her bedroom door, but on this occasion she saw that the complainant’s bedroom door was open and the appellant was walking down the hallway naked with an erection.  The appellant slept naked and would get up to go from the bedroom to the bathroom and the shower naked at night time.
81. [81]
    On another occasion when the complainant was about 15 she had a bruise at the base of her neck and would not elaborate as to what it was.  She said she noticed it was “still there” after they both left home and were staying in the caravan park.  The mark was at the base of the complainant’s throat.  It was like a bruise but darker, about the size of a 50 cent piece.  She thought the mark was first noticeable when the complainant was 15 years old and it stayed there until she was 17.  It faded, but it was still noticeable.
82. [82]
    The ex-boyfriend recalled the complainant’s mother saying that the complainant had made “the whole thing up”.  He put this in his statement to police.  This statement was made when he was with the complainant and her mother during their time in Western Australia.  The complainant and her mother were talking.  The complainant became upset with her mother, because her mother did not believe her complaints of sexual abuse.  The complainant had left the room.  The complainant’s mother had then said to him that she believed that the complainant was “making the whole thing up”.  The boyfriend had witnessed such arguments between the complainant and her mother “on at least a couple of occasions”.
83. [83]
    The complainant’s mother could not recall ever having told the complainant’s ex-boyfriend that the complainant had made up the allegations of sexual abuse.
84. [84]
    The complainant’s mother said that on one occasion when the complainant was about 11 years old, she had been sitting on the appellant’s lap but had got off, and gone running down the hallway.  The appellant asked her why the complainant would not sit on his lap.  She said that the complainant was too old to be sitting on his lap.  The appellant replied that that was ridiculous, “she’s me daughter”.  After that he stopped sitting in his usual armchair in the lounge and began to lie on the two seater lounge.
85. [85]
    She did recall an incident when the bathroom flooded, with a lot of water coming down the hallway while the complainant was having a shower.  The appellant was “screaming about it”.  This would have been when the complainant was 12 or 13 years old.
86. [86]
    On a particular occasion when the complainant was staying with her aunt and uncle, she told her mother she had been sexually abused by her father, but gave no specific details.
87. [87]
    The family had a pet dog called Misty when the complainant was six or seven.  That dog died when the complainant was around 13 or 14.  There was some quite some established garden: trees, bushes and shrubs, in the family garden at the time when the complainant was seven or eight.
88. [88]
    The house was unhappy and the appellant was controlling.  He usually started work as a groundsman at the school at 6.00 am.  He would take the children with him to school when he went to work.  The complainant wore a plaster cast to try to correct her scoliosis for a year before her surgery.  The surgery occurred when the complainant was 13 or 14.  It was the appellant who insisted on the surgery.  After the surgery the complainant experienced back pain and “was never the same after that”.
89. [89]
    Another of the complainant’s ex-boyfriends met her in about 2010 in Western Australia.  His parents were abusive to him and he discussed that with her.  The complainant told him that her father was very abusive, yelling and screaming at her for very minor things.  He would pick her up by the throat and smack her bottom and her feet would come off the ground.  On one occasion she told him that she had been raped but she begged him not to tell her mother.
90. [90]
    A third man who dated the complainant briefly in 2019 said that she reported to him that her father was abusive and angry.  She told him that her father got their family dog to lick her “down there”.  This conversation occurred in 2019.

Defence evidence

91. [91]
    The appellant did not give or call evidence.

Argument as to unreasonable verdict

92. [92]
    The argument made on behalf of the appellant as to unreasonable verdict was that it was not open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt in relation to counts 2 and 10.  Reliance was placed on the fact that the Crown case depended almost entirely upon the complainant’s evidence and that significant contradictions existed between what the complainant had asserted in her handwritten statement and her preliminary complaint to her aunt on the one hand, and her evidence on the other hand.  The fact that no complaint was made of anal rape to any of the people to whom fresh complaint was made, or in the domestic violence application was relied upon.
93. [93]
    The very late complaint about count 1 was relied upon.  The complainant did not make an allegation in this regard until April 2019.  Before that she had participated in three video recorded interviews with police and not said anything about it.  Reliance was placed on the complainant’s mother’s observations of a mark around her windpipe from age 15, although the complainant asserted the mark was made when she was 17.
94. [94]
    There were certainly credit points to be made for the defence on the complainant’s evidence, and they were made before the jury.  Not only that, having regard to the verdicts which were delivered by the jury, and the fact that on six counts the jury could not reach even a majority verdict, the jury must have had at least a reasonable doubt as to much of the complainant’s testimony.  In my view that does not mean that the jury must have had a reasonable doubt in relation to count 2 or count 10 within the meaning of the test established by Pell v The Queen.^[4]  I cannot see that the jury’s verdict was unreasonable in this sense, so that this Court could enter verdicts of acquittal on counts 2 and 10.
95. [95]
    I will note for completeness that there was expressly no argument of inconsistent verdicts made by the appellant.  This was notwithstanding that no verdict was returned on counts 3 and 4 (associated with, but separate from, count 2) and count 11 (associated with, but separate from, count 10).  I note this, not by way of criticism, but because of the unusual pattern of verdicts, and failure to reach verdicts in this case.

Factual misdirection as to count 2

96. [96]
    As noted above, the Crown case on count 2, maintaining, was run in reliance on the complainant’s evidence of uncharged sexual acts between 22 May 2001 and 1 May 2003.  Such a course is open to the Crown – R v WAB.^[5]  The Crown expressly disclaimed reliance upon the specified offending charged at counts 3, 4, 6 and 7 in pressing count 2, and the jury was very clearly instructed as to this.  In the Crown’s opening, the prosecutor gave the jury a document which particularised each of the counts they were to consider.  As to count 2 that document recorded:

“Count 2: Maintaining a sexual relationship with a child under 16

That between 22 May 2001 and 1 May 2003 at [name of town], the defendant, being an adult, maintained an unlawful sexual relationship with [the complainant], a child under 16 years.

And in the course of the relationship the defendant engaged in the following conduct with [the complainant]:

• He groped her buttocks (Indecent treatment of a child under 16, under 12)
• He touched/rubbed her on her vagina (Indecent treatment of a child under 16, under 12)
• He inserted his finger/s into her vagina, without her consent (Rape)
• He inserted his penis into her vagina, without her consent (Rape)”

97. [97]
    Touching the complainant’s breasts was not particularised as conduct relied upon in relation to count 2.  The complainant’s evidence was that her father began to touch her breasts when she was about 13.^[6]  The complainant was aged 10 and 12 in the period covered by count 2.  In summing up to the jury, the trial judge twice correctly summarised the physical acts the Crown relied upon to prove count 2, but shortly thereafter twice made an error when summarising the acts.  In each case he erroneously said that the Crown alleged the appellant touched the complainant’s breasts, rather than her buttocks.
98. [98]
    Further, during the course of the summing up, the trial judge gave the jury a document entitled “Elements Sheet” which summarised the elements of each count they were bound to consider.  In relation to count 2, this sheet correctly summarised the particulars from the particulars document the Crown gave to the jury in opening.  However, in summarising the evidence, the Elements Sheet twice made the same error which was made orally; that is, it showed the Crown relying upon a touching of the complainant’s breasts rather than her buttocks.^[7]
99. [99]
    Apparently neither counsel noticed these errors.  The question for this Court is whether or not the error is one which caused a miscarriage of justice; that is, an error which was prejudicial to the appellant in the sense that there was a real chance that it affected the jury’s verdict or realistically could have affected the verdict of guilt in relation to count 2.^[8]  My conclusion is that the appellant has shown that there was a miscarriage of justice.  There are two considerations which have brought me to that conclusion.
100. [100]
     First, the error was not just a misstatement in that part of the summing up which was delivered orally.  It was recorded twice in writing on the “Elements Sheet” which the jury members were likely to have had recourse to during their deliberations.  That sheet was internally inconsistent, because it initially recorded the particular of touching the complainant’s buttocks, before twice referring to touching her breasts.  It was also inconsistent with the particulars document which the jury had had since the prosecutor’s opening.  There must be a real risk that the jury saw it as legitimate for the Crown to prove a touching of either or both the complainant’s breasts and buttocks in proof of this charge.  They had had evidence from the complainant that the appellant touched both her breasts and buttocks, but her evidence was that he touched her breasts outside the period of maintaining encompassed by count 2.
101. [101]
     Secondly, touching the complainant’s buttocks was the least serious conduct which the jury had to consider in relation to count 2.  The other particulars were touching the complainant’s vagina, digital penetration and penile penetration.  The overall pattern of the verdicts in this case show that, at least, the jury had a reasonable doubt in relation to the complainant’s individual allegations of serious sexual offending.  Apart from count 2, they returned no guilty verdicts in relation to any count of sexual offending.  There must be a real chance that in considering count 2, their focus was on the less serious particulars which formed part of that count.  In those circumstances I think there is a real chance that if they thought they should consider the appellant’s touching the complainant’s breasts when considering count 2 that may have brought about the conviction on that count.
102. [102]
     The verdicts on counts 3 and 4 are a particular illustration of this point.  They were counts of digital rape and penile rape occurring within the period of the maintaining alleged at count 2.  In relation to both of them the jury could not reach a verdict, even on a majority basis.  These counts were said to be the first occasion of rape which the complainant said she was able to remember, and about which she gave detailed evidence.  It seems unlikely that a jury would have a reasonable doubt about these counts, but be satisfied that the very same things (digital rape and penile rape) occurred on other occasions which the complainant herself said were so frequent she did not have specific memories about.
103. [103]
     In my view the verdict on count 2 ought to be set aside and a re-trial ordered in relation to this count.

Jury irregularity

104. [104]
     The third ground of appeal against conviction related to both the guilty verdicts (count 2 and count 10).
105. [105]
     After the summing up, the jury spent about five hours deliberating before separating overnight.  The following morning, the jury sent a note seeking direction because they could not reach unanimous verdicts.  They were given a Black direction and continued deliberating.  The jury returned and said that they had made no further progress.  At that stage the statutory time had passed, and they were given a majority verdict direction.  There were then further deliberations before the majority verdicts were given on some counts, and the jury discharged on the balance of the counts.
106. [106]
     Three days after the verdicts were taken, an email entitled “Complaint – bullying of members of the jury” was sent to the court services feedback mailbox.  The email did not disclose the court or the trial about which the complaint was made.  However, the juror identified themselves by name and number.  Enquiries of the computer system revealed that the complaint was made about the trial now under consideration.  I would at once say that I cannot see any substance at all in the complaint made against the trial judge, or perhaps more accurately “the system”.  Relevantly here, in the course of the email it is stated that, “Because members of the jury had googled information about a hung jury overnight, the members of the jury then had more confidence in sending notes to the judge to move the discussion forward”.
107. [107]
     When the complaining email was brought to his attention, the trial judge gave a de-identified copy to both counsel.  After hearing both the appellant and the Crown, the trial judge granted the appellant’s application to order an investigation pursuant to s 70(7) of the Jury Act 1995 (Qld).  This involved the judge accepting that a juror who conducted research contrary to his direction might have committed an offence pursuant to s 53 of the Jury Act or s 205 of the Criminal Code.  The Sheriff then polled the people who had been members of the jury.  Eleven jurors responded to the effect that they knew nothing about internet enquiries having been made.  The twelfth juror, who had sent the complaining email, did not reply to the Sheriff’s poll.
108. [108]
     The Crown did not object to this Court receiving the above evidence; a de-identified copy of the complaining email, and de-identified responses to the Sheriff’s poll.  In my view the evidence is not caught by the exclusionary rule discussed in Smith v Western Australia.^[9]
109. [109]
     The High Court in Smith discussed the difficulty which an appellate court faces when it has some information which indicates juror misconduct, but cannot be confident of what has occurred – [52]–[55].  That difficulty did not arise in HCF v The Queen because there was no dispute about the irregularity in that case.  Nonetheless the majority judgment in HCF established a new test to be used to determine whether or not there has been a miscarriage of justice because of an irregularity in the conduct of a jury or juror.  That discussion is extremely pertinent to the issue which arises in this case:

“[6]Smith v Western Australia establishes that the question whether miscarriage of justice occurred because of an irregularity in the conduct of a jury or juror is to be determined by applying the test stated by Mason CJ and McHugh J in Webb v The Queen.  That test was stated in terms of whether the irregularity ‘gives rise to a reasonable apprehension or suspicion on the part of a fair‑minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially’.  However, … the test should be understood in terms of whether a fair‑minded lay observer might reasonably apprehend that the jury (or juror) might not have discharged or might not discharge its function of deciding an accused’s guilt according to law (which includes but is not limited to the requirement of impartiality), on the evidence, and in accordance with the directions of the judge.  The ‘double might’ test was confirmed as the test for reasonable apprehension of bias (including on the part of a jury or juror) in Ebner v Official Trustee in Bankruptcy.

1. [7]
   If the irregularity gives rise to such a reasonable apprehension, then there has been a ‘failure to observe the requirements of the criminal process in a fundamental respect’ in that ‘the integrity of the trial process’ has been undermined.  In such event, regardless of any potential effect on the trial, there has been a miscarriage of justice which is inherently substantial and there is accordingly no scope for the application of the proviso.
2. [8]
   While the irregularity in Webb involved conduct of a juror that called into question the juror’s impartiality, and in Smith involved alleged coercion by one juror of another juror, the ‘double might’ test of whether a fair‑minded lay observer might reasonably apprehend that the jury (or juror) might not have discharged or might not discharge its function impartially (‘the reasonable apprehension test’) is not to be confined to any particular class of irregularity of juror conduct; the ‘double might’ test is sufficiently liberal to subsume the range of potential miscarriages of justice by reason of jury (or juror) misconduct or irregularity irrespective of the legal label that might otherwise apply to that misconduct or irregularity.
3. [9]
   In Smith, reference had been made in the decision under appeal to the test in R v Marsland as applied in R v Rudkowsky and R v K.  In K, Wood CJ at CL distinguished Webb on the basis that it concerned possible juror bias whereas in K the irregularity was that several jurors had conducted internet searches from which they ascertained that the accused had previously been charged with the murder of his second wife, the proceeding being a retrial of the accused on the charge of the murder of his first wife.  Wood CJ at CL said the circumstances of the internet searches and information obtained as a result of them were analogous to cases of documents other than evidence being in a jury room.  On this basis, his Honour characterised the irregularity as ‘procedural’ and applied the test derived from Marsland as applied in Rudkowsky that for a procedural irregularity not to give rise to a miscarriage of justice the court must be satisfied that ‘the irregularity has not affected the verdicts, and that the jury would have returned the same verdicts if the irregularity had not occurred’.

10. [10]
    The distinction drawn in K, and the test derived from Marsland, have been applied to jury or juror misconduct in a number of intermediate appellate court decisions, with a range of variations of verbal formulae, as has the test in Smith.  In Mathews v Western Australia, Martin CJ, in dealing with a juror who had sought and obtained information about the accused, considered that the circumstances could not be characterised as a case of either lack of juror impartiality or procedural irregularity.  Rather, the circumstances involved aspects that fell within each of those categories.  His Honour applied both tests and concluded that, on either test, the same result had to be reached – the facts would have given rise to a reasonable apprehension or suspicion on the part of a fair‑minded lay observer that the juror did not discharge his function impartially and the court could not be satisfied that the procedural irregularity did not affect the verdict, in the sense that the jury would have returned the same verdict if the irregularity had not occurred.
11. [11]
    Conceptual coherence requires that the test derived from Marsland, and the range of verbal variations on it, be reconciled with the test formulated in Webb, applied in Smith, and confirmed in Ebner.  The reconciliation needs to be in favour of the test formulated in Webb.  Irregular conduct by a jury or juror, whether described as procedural or otherwise, involves a miscarriage of justice if a fair‑minded and informed member of the public might reasonably apprehend that the jury (or juror) might not discharge its function of rendering a verdict according to law, on the evidence, and in accordance with the directions of the judge.  If the jury or juror misconduct would give rise to such a reasonable apprehension then, for that reason, the misconduct will involve a ‘failure to observe the requirements of the criminal process in a fundamental respect’.  In such a case, satisfaction of the reasonable apprehension test means that the ‘shadow of injustice over the verdict’ cannot be dispelled, that the trial is ‘incurably flawed’, that there has been a ‘serious breach of the presuppositions of the trial’, and that ‘the irregularity [is] so material that of itself it constitutes a miscarriage of justice without the need to consider its effect on the verdict’.
12. [12]
    There may be no practical difference between the test formulated in Webb and the test derived from Marsland were application of the common form proviso focused solely on the effect of an irregularity on the actual jury in the trial.  If the reasonable apprehension test were satisfied, it may then be impossible to conclude that the irregularity did not affect the verdict and the proviso would not be available.  However, this Court’s rejection in Weiss v The Queen of the utility of considering the effect of an irregularity on the actual jury in the trial (referred to as the ‘this jury’ test) in the application of the common form proviso negates that form of reconciliation by assimilation.  The test as formulated in Webb and confirmed in Ebner must prevail.
13. [13]
    Accordingly, in all cases of jury or juror misconduct, what is required to establish a miscarriage of justice, and what will also establish a substantial miscarriage of justice, is that a fair‑minded and informed member of the public might reasonably apprehend that the jury (or juror) might not have discharged or might not discharge its function of rendering a verdict according to law, on the evidence, and in accordance with the directions of the judge.  Although the terms have been used interchangeably in this context, the test is best expressed in terms of a reasonable ‘apprehension’ rather than a reasonable ‘suspicion’.  A suspicion is ‘a state of conjecture or surmise where proof is lacking’; it is ‘more than a mere idle wondering’; ‘it is a positive feeling of actual apprehension or mistrust’.  To be reasonable, a suspicion or apprehension requires a positive feeling of actual apprehension or mistrust which has an objective basis in fact.  To apply the reasonable apprehension test therefore requires first that such relevant facts as can be inferred from the available evidence be found on the balance of probabilities.  In undertaking that necessary preliminary fact‑finding, it is useful to record the truism that ‘[o]ne does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed’; inference requires ‘something more than mere conjecture, guesswork or surmise’.
14. [14]
    In the circumstances of the present case, where the issue has arisen only after conviction, the question of miscarriage of justice may therefore be expressed in these terms:

‘On the facts to be found on the balance of probabilities, might a fair‑minded and informed member of the public reasonably apprehend that the jury or a juror might not have discharged the function of deciding the appellant's guilt according to law, on the evidence, and in accordance with the directions of the judge?’

15. [15]
    The evidence available for the purpose of fact‑finding is affected by the common law rule excluding evidence of the jury’s deliberations.  However, the limits of that common law rule are informed by its underlying policy to ‘maintain the integrity and finality of a formally expressed verdict’.  The rule does not apply to evidence extrinsic to the deliberations of the jury and may, of course, be modified by statute.  It was common ground in the appeal that a report of the Sheriff under s 70(7) of the Jury Act 1995 (Qld) was properly admitted into evidence.  This appeal, accordingly, provides no opportunity to decide questions relating to the scope of the exclusionary rule in the light of the reasoning in Smith.
16. [16]
    Evaluation of the available evidence from the perspective of a fair-minded and informed member of the public must take account of the requirement of s 50 of the Jury Act that ‘[t]he members of the jury must be sworn to give a true verdict, according to the evidence, on the issues to be tried’.  Apprehension of a violation of that oath is not lightly to be inferred.”  (Footnotes omitted and underlining added).

110. [110]
     Counsel for the appellant raised two points in respect of the evidence about irregularity.  First, that the complaining email created a reasonable apprehension that achieving majority verdicts was the result of considerations extraneous to the judge’s directions.  Secondly, that if a member of the jury, or members of the jury, breached the judge’s directions in one respect, this Court should be concerned that there were other breaches.  After the High Court decision in HCF was delivered, the parties in this case were given leave to make further submissions.  The appellant’s counsel withdrew the second part of his argument.  He acknowledged that it was now untenable in light of what appears in HCF at [13].  In my view, the concession was correctly made.  The second part of the appellant’s argument invited the court to enter the realm of speculation.
111. [111]
     In dealing with the appellant’s remaining point, it is first necessary to undertake the fact finding exercise discussed in Smith and touched on in HCF.  The evidence establishes that one juror out of 12 informally alleged that an irregularity occurred during the jury’s deliberations because “jurors” disobeyed the trial judge’s direction and researched matters of process about a jury being unable to agree.  That juror said that as a result, the jury asked for assistance about their inability to agree on a unanimous verdict earlier than they otherwise would have.  That information has not been tested in the way it would have been had the assertion been made during the course of the trial.  That juror was not prepared to respond to the Sheriff when a formal enquiry was made.  Eleven jurors who did respond to the Sheriff said they knew nothing of the asserted irregularity.
112. [112]
     It may be that, despite the language of the complaining email (“jurors”), the juror who sent the complaining email was the only juror who breached the trial judge’s directions about external research, and that juror did not disclose to the other jurors what they had done.  While that conclusion reconciles the conflicting material before the Court, it is speculative, and I am not sufficiently confident of it to make that factual finding.  That being so, there is conflicting information about whether there was any disobedience to the trial judge’s direction not to undertake research.  In addition, the complaining email has peculiar features which do not instil confidence in the judgment or reliability of the author.
113. [113]
     The complaining email voiced dissatisfaction that the majority verdict direction was not given earlier.  It asserted that if it had been, “the same verdict would have been reached about a day earlier”.  The writer of the email was obviously ignorant of the provisions relating to the passage of time before a majority verdict can be taken.  However, the assertion that the same verdict would have been reached, albeit earlier, tends to emphasise that asserted irregularity did not impact on the substance of the verdicts given.
114. [114]
     The case of HCF involved misconduct by one juror who announced to the other jurors that he had an immoveable pre-disposition in respect of some of the issues before the jury, and who conducted internet research as to the sentences which would be appropriate for some of the offending they were to consider.  That juror told the others that what he thought was the likely sentence influenced whether or not he would return a guilty verdict.  Here, the asserted breach of the juror’s obligation related only to process and did not affect the substance of the verdicts.  This distinguishes this case from both HCF and Smith.
115. [115]
     The necessary fact finding exercise is discussed at [13] of HCF above.  The question is whether or not this Court can find as a fact that “a fair‑minded and informed member of the public might reasonably apprehend that the jury (or juror) might not have discharged … its function of rendering a verdict according to law, on the evidence, and in accordance with the directions of the judge.”  I am not persuaded to make that factual finding in this case for the reasons just outlined.
116. [116]
     Even if the evidence were stronger, I cannot see that the irregularity affected the juror’s or jury’s discharge of the function of deciding about the appellant’s guilt according to law, on the evidence, and in accordance with the directions of the trial judge.  The irregularity was to disobey a direction and research a matter which was purely a matter of process.  The stated effect of the research was to bring the inability of the jury to reach a unanimous verdict to the attention of the judge earlier than otherwise would have been the case.  Nothing about the irregularity bore on the question of the appellant’s guilt.  It did not bear upon the evidence which the jury considered in coming to its conclusion about the question of guilt, or upon the law it applied in making those determinations.  To use the words from Smith, and adopted in HCF at [11], the irregularity did not cast any “shadow of injustice over the verdict”.  The irregularity is not one which affected the verdict or the substance of the jury’s deliberations about the verdict.

Conclusions in relation to conviction

117. [117]
     In relation to the appeal against conviction I would:  (1)  Set aside the verdict on count 2 and order a re-trial on that count; (2)  otherwise dismiss the appeal.
118. [118]
     Because I have come to these conclusions, I need not consider the application for leave to appeal against sentence.  However, I will express my views on the application.  It was fully argued before us.  It concerned ss 747 and 748 of the Criminal Code which are transitional provisions relating to changes to the elements of, and maximum sentence for, the offence of maintaining a sexual relationship with a child.  We were told that the points raised arise frequently enough in practice, and that there is no appellate authority on ss 747 and 748 of the Criminal Code.  Although the matters relating to sentence fall to be determined on an application, for consistency, I will continue to refer to the applicant on the leave application as the appellant.

Appeal against sentence

119. [119]
     The trial judge imposed a sentence of 11 years for the maintaining which was the subject of count 2 on the indictment.  To do so he made a finding of law that the maximum penalty for that offence was life imprisonment, and a finding of fact that the appellant regularly touched the complainant’s buttocks and vagina (by which he probably meant vulva); digitally raped her more than once a week and raped her by inserting his penis into her vagina more than once a week over a period of two years from the age of 10 years old.
120. [120]
     In written submissions, and on the oral hearing of the appeal, counsel for the appellant accepted that the sentence was within range.  However, he said that the primary judge had made an error of law so that this Court was obliged to set the sentence aside in accordance with Kentwell v The Queen.^[10]  The appellant’s counsel asked for a sentence of 10 years on the basis that he accepted the factual basis upon which the appellant was sentenced.  In the course of preparing these reasons I formed the view that the factual basis for sentencing adopted by the primary judge was perhaps not open to him.  Accordingly, supplementary written submissions were sought from the parties and counsel for the appellant asked for leave to withdraw the concession that the appellant was sentenced on a correct factual basis below.  The Crown did not actively oppose that leave per se, but advanced arguments of law as to why this Court should not find that there was a basis to interfere with the factual basis adopted by the primary judge.  I would give leave to withdraw the concession; it was plainly wrong and it matters, not just to the factual outcome in this case, but raises important questions of law.

Relevant Statutory Provisions

121. [121]
     Currently s 229B creates the offence of maintaining.  At the time of charge, trial and sentence, the maximum penalty for maintaining was life imprisonment.  But the period of maintaining in count 2 had occurred about 20 years beforehand.  At the time of the offending the definition of the offence of maintaining was different, and the maximum penalty was not life imprisonment.  A transitional provision at s 747 of the Criminal Code applies.  So far as is relevant, s 747 reads:

“(1) Section 229B as in force on the commencement of this section applies, and is taken always to have applied, during the following periods—

1.  the period starting on the commencement of the 1989 amendment and ending immediately before the commencement of the 1997 amendment;

2.  the period starting on the commencement of the 1997 amendment and ending immediately before the commencement of the 2003 amendment.

…

3.  For applying section 229B under subsection (1)(b) the section applies, and is taken always to have applied, as if –

1.  the maximum penalty under section 229B(1) were—

1.  if in the course of the unlawful sexual relationship the adult committed an unlawful sexual act for which the adult is liable to imprisonment for 14 years or more—life imprisonment; or

2.  otherwise—14 years imprisonment; …”^[11]

122. [122]
     This transitional provision means that the definition of the offence of maintaining is taken always to have been the current definition.  Presently s 229B(1) provides:

“Any adult who maintains an unlawful sexual relationship with a child under the age of 16 years commits a crime.

Maximum penalty – life imprisonment.”

123. [123]
     Were it not for s 747(3), the effect of s 747(1) would be that the maximum penalty for maintaining is taken always to have been life imprisonment.  However, that interpretation is not open given the specific provision at s 747(3).  Section 747(3) clearly derogates from the more general section at s 747(1), so that while the current definition of the offence at s 229B applies, whenever the offence was committed, that part of s 229B(1) which sets out the maximum penalty does not apply (relevantly) if the crime was committed in the time specified at s 747(1)(b).  For crimes committed in that timeframe, the penalty is as set out in that part of s 747(3)(a) set out above.
124. [124]
     In this Court, counsel for the appellant contended that s 747(3)(a)(i) created a circumstance of aggravation as defined in s 1 of the Criminal Code.  The Crown did not dispute this, at least until its further written submissions,^[12] and I consider the contention to be correct.  The relevant definition is at s 1 of the Criminal Code: “circumstance of aggravation means any circumstance by reason whereof an offender is liable to a greater punishment than that to which the offender would be liable if the offence were committed without the existence of that circumstance.”  The current maximum penalty for the offence of maintaining committed in the timeframe specified at s 747(1) is 14 years unless, in the course of the unlawful sexual relationship, the adult  commits a sexual act for which they are liable to imprisonment for 14 years or more.  This is a circumstance of aggravation within the definition at s 1 of the Criminal Code.^[13]
125. [125]
     Section 564 of the Criminal Code deals with indictments.  Subsection (2) provides that, “If any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment.”  On the hearing of this appeal the Crown conceded that the circumstance of aggravation created by s 747(3) should have been endorsed on the indictment.  I think that concession was correct.  A question arises as to whether or not a circumstance of aggravation created by s 747(3) was endorsed on the indictment.
126. [126]
     Count 2 of the indictment was as follows:

“That between the twenty-second day of May, 2001 and the first day of May, 2003 at Townsville in the State of Queensland, [the appellant] being an adult, maintained an unlawful sexual relationship with [the complainant], a child under 16 years.

And in the course of the relationship [the appellant] raped [the complainant].”

127. [127]
     Rape was an offence which at all material times carried a sentence of 14 years or more, so the indictment did allege a circumstance of aggravation within the meaning of s 747(3).^[14]

Proceedings at the Trial

128. [128]
     At the beginning of the trial the appellant was arraigned on count 2, including the circumstance of aggravation.  In taking the verdicts, the judge’s associate asked whether or not the members of the jury had reached a verdict “on count 2, maintaining a sexual relationship with a child, on which all 11 are agreed”.^[15]  They replied “yes”, and were then asked whether they found the appellant “guilty or not guilty of count 2, maintaining a sexual relationship with a child”.  They were never asked about the circumstance of aggravation.^[16]
129. [129]
     Before the sentencing day, at mentions of the matter to discuss the complaining email (dealt with above), trial counsel for the appellant raised the fact that he did not think the jury were asked about the circumstance of aggravation attaching to count 2 when the verdicts were taken.  In response, the trial judge recorded his recollection that he had asked his associate not to take a verdict on count 2 with the circumstance of aggravation.  He had formed the view that, in the circumstances of this case, the circumstance of aggravation was a nullity and (he said) should have been the subject of a nolle prosequi.  The trial judge explained the legal reasoning behind his conclusion.  It was not contended to be correct by either side on this appeal.  From what appears on the transcript of this mention, it seems that the judge below had read s 747(1), but not s 747(3).
130. [130]
     Were a trial judge to reach a conclusion during the course of a trial that there was a problem with the indictment, that judge ought to raise their thoughts with the parties.  Fundamental questions of natural justice arise.  Further, here, because the appellant had been arraigned on the circumstance of aggravation, the appellant was in charge of the jury, inter alia, in respect of count 2 with the circumstance of aggravation.^[17]  If a difficulty with the words of the indictment were to be discovered, the answer could never have been as simple as the trial judge seemed to have assumed.^[18]

Basis for Sentencing Below

131. [131]
     About a month later, the matter was listed for argument about the factual and legal basis upon which the appellant was to be sentenced.  The judge below reserved his decision after that argument, and delivered a written judgment dated 13 December 2022 in which he gave reasons for deciding that the maximum penalty for the defendant’s offending at count 2 was life imprisonment, and that the factual basis upon which he would sentence was as set out at [119] above.  In his reasons the judge reiterated his incorrect view about s 747(1).  His Honour then reasoned that, in any case, because the complainant was the lineal descendant of the appellant, and for most of the maintaining period charge was under 12 years of age, even if the jury had only been satisfied that the appellant had touched her buttocks or vagina, that would amount to an indecent dealing as defined by s 210 of the Criminal Code and, because of the provisions at s 210(3) and (4) of the Code, the maximum penalty would have been 20 years at the date of the offending.  Thus, he said s 747(3)(a)(i) was satisfied, and the maximum penalty for the offending was life imprisonment.^[19]
132. [132]
     So far as the factual basis for sentence was concerned, the judge below referred to Cheung v The Queen^[20] to conclude that it was for him to determine the factual basis on sentence on the balance of probabilities (to a Briginshaw standard) so long as those findings did not controvert the jury verdict.  He referred to s 132C of the Evidence Act 1977 (Qld).  The judge noted that the complainant’s “evidence of the acts relied upon as particulars of count 2 was relatively brief” – [38] and referred to the failure of the jury to reach verdicts in respect of six of the counts before them.  Of that last matter, he said that it had “limited bearing [on his] determining the facts [upon which] the defendant is to be sentenced.” – [44].  In this respect he relied upon R v W.^[21]  I record that I have not considered, and do not necessarily accept the correctness of that last conclusion, or indeed the reasoning in R v W.
133. [133]
     The judge below gave some reasons in which he recorded his reconciliation of the verdict of not guilty on count 6 with the verdict on count 2.  He then recorded that he formed a favourable impression of the complainant’s credit.
134. [134]
     The judge below nowhere dealt with the fact that the question of whether or not the appellant raped the complainant was one for the jury, because of the circumstance of aggravation on count 2 upon which the appellant was arraigned.  The submission had been made before him.
135. [135]
     Having delivered the decision just described, the sentencing judge heard counsel’s remaining submissions as to the sentence, and imposed the sentences I have already recorded.

Appeal Point as to Sentence

Error of Law

136. [136]
     The appellant’s ground of appeal in relation to the sentence was that, “The learned judge erred in holding that the maximum penalty applicable to count 2 was life imprisonment”.  The argument was that s 747(3) created a circumstance of aggravation which had been endorsed on the indictment, yet no verdict was taken on the circumstance of aggravation.  The argument continued, “In these circumstances, the judge erred in concluding that the maximum penalty for count 2 was life imprisonment.  It was 14 years imprisonment.  It was not permissible to sentence on the basis that a circumstance of aggravation was established when the jury had not returned a verdict in relation to that circumstance of aggravation.”^[22]  It was said that this mistake by the sentencing judge as to the maximum penalty was an error of law, and that this Court was therefore obliged to resentence in accordance with the authority of Kentwell v The Queen.^[23]
137. [137]
     In my view the failure to ask the jury about its verdict on the circumstance of aggravation to count 2 was a fundamental departure from the proper procedure governing the trial.  It meant that the judge failed to take a complete verdict from the jury.^[24]  Both counsel ought to have noticed this matter and raised it at the time it occurred, before the jury was discharged.  The point was raised on this appeal as going only to sentence, which distorts the framework in which it is to be considered.  Nonetheless, I consider that the point is correct, and that the judge below did make an error of law in thinking that the maximum sentence for the maintaining offending at count 2 was life imprisonment.
138. [138]
     Neither counsel on appeal addressed the alternative basis outlined by the sentencing judge to conclude that the maximum sentence was life imprisonment – see [128] above.  I will record that I consider it to be incorrect.  The form of the Crown particulars to count 2 is set out at [96] above.  The particulars are not well drafted.  Each of the dot points first describes a factual circumstance.  Those factual circumstances are the proper subject of particulars.  However, in each case, the document goes on to characterise the factual circumstance as a particular crime, and in two cases adds the short form of a circumstance of aggravation.  This was improper.  Particulars are not an indictment.  Characterising factual matters as an offence, with or without a circumstance of aggravation, did not mean that the appellant was charged with the offences or circumstances of aggravation which are listed in the particulars.  These matters could have been endorsed on the indictment as circumstances of aggravation to the maintaining count, but they were not.  Including these matters in the particulars did not mean that a guilty verdict on count 2 triggered s 747(3)(a)(i).  The maximum sentence was 14 years imprisonment.

Error of Fact

139. [139]
     Kentwell requires that because this Court has identified an error of law on the part of the sentencing judge we must resentence the appellant unless we would impose exactly the same sentence as the judge below.  On the factual basis used by the primary judge, the long period of time over which the appellant committed very serious offences and the frequency of his offending was such that a sentence of 11 years was within range whether the maximum penalty was 14 years or life imprisonment.  Unfortunately, I cannot see that the factual basis for the sentence which the judge below adopted was open to him, because of the failure to take a verdict from the jury as to the circumstance of aggravation.
140. [140]
     The authority of Kingswell v The Queen referred to above, is to the effect that:

“When an accused pleads not guilty to an indictment, the whole of the issues on which the accused’s guilt of the offence charged depends are joined between the Crown and the accused and those are the issues to be tried by the jury … The jury’s function is to try, and to try only, the issues joined between the Crown and an accused when the accused pleads to the indictment.”^[25]

141. [141]
     As already discussed, it was competent for the Crown to endorse the indictment with the circumstance of aggravation which it did.  The appellant was arraigned on that count and was in charge of the jury on that circumstance of aggravation; it was a question for the jury to determine, not the judge.  As noted above, I think the proper analysis of what occurred is that the trial miscarried when the judge failed to take a complete verdict from the jury.  However, dealing with the matter in the framework in which it was argued, the judge below had no business making a factual finding about whether or not the appellant raped the complainant.  The matter was not to be decided according to s 132C of the Evidence Act, or the authority of Cheung; those authorities could only apply where a verdict was properly and completely taken from the jury.  In Kingswell, Brennan J stated the principle this way:

“When the ambit of the sentencing discretion is ascertained by reference to the conviction, the judge alone determines any question of disputed fact on which the exercise of his discretion depends … The judge is not at liberty to find that the offender was guilty of an offence graver than the offence of which he was convicted … nor to make findings that conflict with the verdict of the jury … .  Without the offender’s assent, it would be wrong to deprive him of his right to trial by jury for that offence …” – pp 288–289.

142. [142]
     Brennan J continued:

“A familiar example is the prescribing of a greater penalty for an offence committed after a previous conviction.  Ordinarily the previous conviction is treated as an element of an offence.  The indictment must charge the previous conviction as well as the subsequent offence and the accused must be arraigned accordingly … and, if the accused pleads not guilty, both issues must be found by the jury against the accused before he is liable to the greater penalty. …

…

When an indictment might and should have charged a previous conviction or any other circumstances by reason of which an offender is liable to a maximum penalty greater than the maximum penalty to which he would otherwise be liable, the sentencing judge cannot assume the jury’s function and, finding what was not charged, hold the offender liable to the greater maximum penalty. …

The rule exemplifies an underlying principle, namely, that an offender’s liability to punishment or his liability to a particular maximum penalty depends on the facts determined by his plea of guilty or by the verdict of a jury.  The principle underlies a provision which Sir Samuel Griffith included in his draft Criminal Code.  As enacted, the Criminal Codes of Queensland and of Western Australia contained – and the Queensland Code continues to contain – a provision that any circumstance of aggravation that is intended to be relied upon should be charged in the indictment …” – pp 289–290.

143. [143]
     The facts of the present case are different from those in Kingswell, for here the jury was charged with determining the circumstance of aggravation, but erroneously, no verdict was taken from them on it.  Nonetheless, the statements of principle apply.  It was the function of the jury to determine whether the appellant raped the complainant.  The judge could not prevent the jury from making that decision and then determine the matter himself.  Factually the case is more similar to R v Satalich.^[26]  The effect of that decision is stated in the Victorian Benchbook as being:

“If the jury cannot agree on the aggravated form of the offence, the judge cannot take a verdict on the offence simpliciter and then determine as a sentencing fact whether the aggravating factor exists.  Instead the judge must take the verdict on the offence simpliciter and sentence in accordance with that verdict.”^[27]

Conclusions on Sentence Application

144. [144]
     Even if the conviction in this case could be saved, the sentence would have to be set aside because the judge made a mistake of law as to the maximum penalty for the offending and because he assumed a wrong factual basis for sentencing.  I refrain from expressing any view on what a proper sentence should have been below.  Firstly, this part of my reasons for judgment is obiter and secondly, the matter was not argued before us.