R v PBQ[2025] QCA 101

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Brown JA.
2. [2]
   FLANAGAN JA:  I agree with Brown JA.
3. [3]
   BROWN JA:  The appellant was convicted of one count of indecent treatment of a child, under 16, under care, following a two day trial.  The defence case was that the incident involving the appellant and the complainant as she described never occurred.

Grounds of appeal

4. [4]
   The appellant originally appealed on the ground that the verdict was unreasonable or cannot be supported by the evidence.  The grounds of appeal were subsequently amended to raise additional grounds, which was not opposed by the Crown.  In particular, the appellant contends that the trial judge failed to give, or adequately give, directions to the jury which caused there to be a miscarriage of justice.  The oral submissions of the appellant did not address the ground of unreasonable verdict and focussed on the inadequacy or lack of directions.  No grounds of appeal were, however, abandoned.
5. [5]
   It is appropriate to commence with the ground that the verdict is unreasonable.  It is therefore necessary for this Court to carry out its own independent assessment of the evidence.

The evidence at trial

6. [6]
   The principal evidence at trial was given by the complainant.  Evidence of preliminary complaint was given by the complainant’s mother and her grandmother.

Complainant’s evidence

7. [7]
   The complainant’s evidence was the subject of a record of interview with police and subsequently pre-recorded evidence.
8. [8]
   It is uncontentious that the appellant was, at the relevant time, the partner of the complainant’s mother.
9. [9]
   On the day in question, the complainant said that the appellant was babysitting her and her mother was at work.  The complainant said that the appellant called out to her and asked if he could have a cuddle and said that he would buy her a new phone if he could give her a cuddle.
10. [10]
    According to the complainant, the complainant said no.  A couple of hours later he asked again whether he could have a cuddle.  She said that she went into her mother’s bedroom where he was lying on the bed and gave him a cuddle and then when she was on the bed he started “touching my private part”.^[1]  She stated it continued for around one to two minutes.  She then got up and left and played with her Xbox.
11. [11]
    The complainant stated that at the time he had silky pyjama shorts on.  They had a superman print on them.  At that stage the complainant said that she used to call the appellant dad and treated him like he was her dad.  In describing the incident, the complainant said that when the appellant went to cuddle her, he switched positions to the side.  He put one hand under her head and the other down onto her stomach and then he moved it down.  She stated his touch was originally really soft and then it got a little bit aggressive.  He began rubbing her private part a little harder and moving his hand up and down.  She had “bummers” on, which are like bike shorts.  His hand was on the outside of the “bummers”.  She stated that he used two fingers and was going up and down.  She identified her private part to be her vagina and in particular that the area where he was rubbing was her clitoris, which she described as “it’s like in the middle”.^[2]  She said she only found out a couple of years ago what he was actually doing but she did not have a clue at the time.
12. [12]
    When asked by the police officer whether there was anything else she could feel, she stated “I felt his fat stomach” and then “I couldn’t feel anything else.  I’m lying, I c - , did feel like something else. … It was his private part”.^[3]  She stated it was just below my butt and she could feel it sticking out.  When asked what it felt like she said “[i]t felt like a bone” and said that he had a “boner”.^[4]  The complainant said she knew what a boner was because she had had a sex talk with her mum and aunties and that they had also talked about it at school because “you need to learn that stuff”.^[5]  The complainant identified that the appellant’s private part that she was referring to was his penis.
13. [13]
    The complainant stated that she was 11 turning 12 or 12 years old at the time “I was somewhere in that, at that age”.^[6]  The complainant said she was, at the time of the incident, at the “[s]tart of Year 6.  Maybe Year 5, the end of Year 5”.^[7]  She said her mother went to work on the day it occurred.  At that time they lived at a house at Mount Low.  The complainant described the house and drew a picture of the floor plan and her mother’s bedroom.  She stated that they stayed at Mount Low from when she was 10 and that they stayed there for three to four years.  The complainant identified the primary school that she was attending at the time.  The complainant thought it would have been a Sunday.  She stated that the incident occurred during the holidays.  However, she could not identify in which school holidays the incident took place.
14. [14]
    The complainant did not tell anyone at the time.
15. [15]
    Evidence was given which was said to be part of the “narrative” of the complainant’s relationship with the appellant including that there were times when the appellant would constantly ask her why she had such a big bum and would touch her bum or kick it and do a “little karate thing”.^[8]  The complainant said she did not like the appellant doing those things.
16. [16]
    According to the complainant an event which occurred when she was approximately 13 caused her to tell her mother of what had happened earlier with the appellant.  The complainant said the appellant had asked her a “stupid question” which was “can you twerk”.^[9]  He had asked her after she got home from school.  He was standing at the door of her room with his hands up high on the door.  She told him that she couldn’t.  He then asked “are you sure” and she said no.^[10]  She said at the time he was half naked from the waist up which made her even more uncomfortable and that it brought up memories from the past.
17. [17]
    The complainant said she took the appellant’s question about whether she could twerk seriously and two days later she told her mother that he asked if she could twerk.  She said the conversation started off by her asking her mother about how she was and how was her relationship.  She said her mother told her “like all her problems”^[11] and that’s when she told her mother that the appellant had asked if she could twerk.  Her evidence included that:^[12]

“Um, I told my mum that [the appellant] asked me if I could twerk. And then she said, really, with teary eyes. I was crying too and then I started crying more when I told her the past. I was like, and she was like, is there anything else I need to know? And then I was like, oh just, and I was crying like emotionally like really upset. And I told her that [the appellant] was touching my private part and then that’s when she was like really upset. She had to pull over in the car and just have a good talk with me. We were in the car when I told her.”

18. [18]
    According to the complainant, when the appellant asked her whether she could twerk it “[brought] back everything that’s being going on”.^[13]  She said a couple of days before he asked why she had such a big bum.  She stated “that’s when I got upset and uncomfortable ‘cause I was home alone with him.  And then mum gets back like [the] same, same time 4:30 to 5:30 ‘cause she had to pick [the] baby up from daycare”.^[14]
19. [19]
    The complainant’s mother and aunty took the complainant to the police four days later.
20. [20]
    The complainant told the police that after she had told her mother the family had celebrated her sister’s birthday before she went to the police.  She said that “mum’s tried to kick him out before then but he wouldn’t go obviously ‘cause it’s his daughter’s birthday and it’s her [first] birthday.  After that he had to stay because he had a couple of drinks and yep, nothing weird happened that night”.^[15]  According to the complainant her mother’s relationship with the appellant was on again and off again.  She said that she told her father, her grandmother and her aunty what happened after she told her mother.
21. [21]
    In her interview with the police, the complainant said that the reason they were at the police station was because she had told her mum and she was“[p]retty sure it’s against the law for a parent not to say anything.  Yeah, it is.  It should be.”^[16]
22. [22]
    In cross-examination, the complainant agreed that she didn’t really like the appellant, that he had embarrassed her a number of times and that his comments about her bottom upset her.  She agreed that prior to her sister’s birthday, which was two days before she spoke to the police but after she had spoken to her mother, she and her mum had wanted the appellant out of the house.  At the time of the police interview the appellant had not left the house.
23. [23]
    The complainant was particularly challenged in cross-examination about her saying to police that she didn’t know that what the appellant was doing was wrong at the time, and that she had only appreciated it was wrong after having sex education classes, which she said occurred at school in year six.  She agreed she didn’t have a distinct memory of exactly when the incident occurred and stated that the description of her being in year five or six was the most accurate one.  Defence counsel had put to her that she was ten years of age in 2018 when she was in year six.  The complainant agreed with what was put to her by the defence counsel.  Defence counsel later agreed that the cross-examination premised on the complainant being 10 in 2018 was incorrect.  The complainant maintained that the appellant had touched her before she had sex education lessons at school which were given in year six.
24. [24]
    The complainant agreed in cross-examination that she had kept silent for a number of years in relation to what had occurred.  She stated that she knew at least in December 2022 that her mum wanted the appellant out of the house.  When asked whether that was the reason she told her mum about the allegation of the appellant sexually touching her, she said it was, “[w]hen he asked me if I could twerk”.^[17]  She denied that she told her mum about the appellant touching her on her vagina to help her mum get rid of the appellant or that she had made it up.  She denied that going to the police was going to hopefully kick the appellant out of the house, but agreed that she was hopeful that he wouldn’t be able to return after she spoke to the police.
25. [25]
    The complainant was also cross-examined about posing for photographs with the appellant.^[18]  The complainant was asked about the first birthday party of her sister and stated that by that stage she didn’t want to have anything to do with him.  In response to “[a]nd would you have been trying to avoid him at the party?”, she stated “I didn’t want to be rude, but a little bit”.^[19]  She originally said she had not posed for any photos with the appellant, but then said she wasn’t confident of that answer.  The complainant then agreed the photos shown to her (Exhibits 3 and 4), were photos of her with the appellant and her mum and her sister.
26. [26]
    The complainant disagreed that the appellant had never suggested he would buy her a new phone.  She said she had chased him about it but “[n]ot often” and “I only asked like twice … [n]ot even that”.^[20]

The complainant’s mother

27. [27]
    The complainant’s mother gave evidence that in 2020 the complainant was 11 turning 12 and in grade six; in 2019 she was 10 turning 11 and was in grade five.  She confirmed that the family were living at Mount Low from approximately March or May 2019 until May 2022.  An admission was also made that the lease of the house at Mount Low was from February 2019 and to May 2022.
28. [28]
    The complainant’s mother stated that she and the appellant had a relationship on and off through 2017 to 2020 and then she started talking to him again in 2021 and the relationship finally ended in 2022.  During that period the appellant had sometimes lived with her family, including at Mount Low.  When staying at Mount Low the appellant stayed with the complainant’s mother in her room.  She confirmed she was working during that time on a fulltime basis and worked Sunday through to Thursday.  She started work later on Sundays at 9.30 am.^[21]  She stated that she would rely on her mother to care for the complainant but if she didn’t have an arrangement with her mum or her sister, the appellant, when he was back from work, would on some occasions look after the complainant.  She confirmed that had occurred while the family lived at Mount Low.
29. [29]
    She recalled the conversation with the complainant on 1 December 2022 about the appellant asking her if she knew how to twerk and his touching her earlier.  She stated that she pulled the car over after having a discussion about the definition of flirting with the complainant.  She further stated:^[22]

“And she looked quite upset. I asked her if she was okay and she said speaking of [the appellant] that he had gone into her room and asked her if she knew how to twerk. And then I’d said that that wasn’t okay, and she started crying and put her down (sic) and said she was scared.

(…)

And did she say anything else to you?---We were both crying and then she said, ‘Sorry, Mum,’ and I didn’t understand why and she said to me, ‘When I was younger, he had touched my private parts.’ And I asked her what she meant, and then she said that he had rubbed her vagina.”

30. [30]
    She stated that after the conversation she had first gone to her sister’s place but found children were there with her sister so she went home.  She confronted the appellant about asking the complainant to twerk and then kicked him out.  She stated that they did not go to the police until 5 December.  In the intervening period she had told her brother-in-law and her mother about what had happened to get family support.  She said that it was her youngest daughter’s first birthday on 3 December and she wanted that day to be for her youngest daughter.  She said she told her sister what had happened and they went to the police with the complainant after that.
31. [31]
    In cross-examination, the complainant’s mother agreed that she, the appellant and her mother had an argument prior to her being told by the complainant about what she said had occurred and it was in that context that she had started talking about flirting with the complainant.  She agreed that prior to going to the police she had a conversation with the complainant that she was trying to kick the appellant out but that he kept coming back.  She said that topic had come up a number of times and it may have been brought up in the car.
32. [32]
    The complainant’s mother said that the complainant had initially got on well with the appellant and looked to him as a father figure.
33. [33]
    She was asked whether she had had “the sex talk” with her daughter when she was a bit younger.  She said she had talked “[a]bout appropriate contact and – so if she felt unsafe - - - … about context of conversations that people might want to have with her or their actions, what was acceptable and what was not acceptable”.^[23]  She stated that she had the conversation with the complainant about what was appropriate and inappropriate when the complainant was five, six or seven.  She said she reinforced good touching, bad touching and things like that.
34. [34]
    She thought that the complainant had got a phone at the end of 2018 or 2019 and before that stated that she would have had access to her phone.

The complainant’s grandmother

35. [35]
    The complainant’s grandmother also gave evidence.  She confirmed that she lived with her daughter and granddaughter at Mount Low between 2019 and 2022.  She worked as a support worker and did day and night shifts.  She would look after her granddaughter, but there were times when she could not babysit the complainant and she would let her daughter know so she could make alternative arrangements.
36. [36]
    She stated that she had a conversation with her granddaughter on 1 December 2022.  She said it was at nighttime and her granddaughter had approached her quite upset and agitated.  She stated “she opened up and said to me that she had already spoken to her mum and said she had heard the conversation that morning and she – she was a bit confused on the word ‘flirting’... she was confused on that topic, she wasn’t too sure what ‘flirting’, meant”.^[24]  She stated that her granddaughter was upset and she told her  that, “[the appellant] had touched [her] vagina and …the other day he wanted [her] to twerk for him”.^[25]
37. [37]
    The grandmother agreed that the complainant had at some stage mentioned to her that she did not like the appellant and did not like him staying at the house.
38. [38]
    Constable Wren, who was working on the case in December 2022, and had resigned from the Queensland Police Service in July 2023, gave evidence.  The officer agreed that when the complainant was asked about the people the complainant had told about what the appellant had done to her, she had included her father and her aunt.  The officer stated that he had attempted to speak to her aunt but the aunt did not want to become involved.  In relation to her father, the officer said he tried to call him and he didn’t answer and he made no further attempts to contact him.  He had stopped working with the police service shortly after.
39. [39]
    No other evidence was called.

Legal principles

40. [40]
    The appellant contends that the verdict is unreasonable and cannot be supported having regard to the evidence because proper consideration was not given to inconsistencies and discrepancies in the evidence of the complainant and as between the complainant and her mother which should have caused the jury to have reasonable doubt.
41. [41]
    In M v The Queen^[26] the majority^[27] observed that where it is sought to set aside a verdict on the ground that it is unreasonable and cannot be supported having regard to the evidence, the question is one of fact which the court must decide by making its own independent assessment of the evidence.  The court must examine whether, notwithstanding there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand” (footnotes omitted).^[28]
42. [42]
    The majority in M stated that even where there is evidence to sustain a verdict, the question which an appellate court must ask itself “is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.^[29]  The court must not, however, in answering that question disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility in determining guilt or innocence or the consideration that the jury has had the benefit of having seen and heard the witnesses.^[30]  In the event that there is evidence which lacks credibility for reasons which are not explained by the manner in which it is given and “the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence”.^[31]
43. [43]
    The appellant relies on Pell v The Queen,^[32] in which it was contended that the verdict was unreasonable.  In Pell, the High Court, followed the test identified by the majority in M, but in that case accepted that the jury must have accepted the complainants’ evidence as credible and reliable in reaching its verdict and proceeded on that basis.^[33]  While it can be inferred in the present case that the jury accepted the complainant’s evidence, the present case is quite different from Pell, insofar as in that case there was unchallenged evidence of a credible witness whose evidence provided a complete answer to the Crown’s case.
44. [44]
    The High Court in R v ZT^[34] confirmed the test in M and further elaborated on the process the court was required to undertake in carrying out the “independent assessment” of the “sufficiency and quality of the whole of the evidence” that:^[35]

“… However, that assessment is undertaken in a context in which an appeal is as much of an adversarial process as the criminal trial from which the appeal is brought and in which it is for the parties to identify the evidence that the appellate court must review and assess and the features of that evidence that support their respective cases on appeal. The appellate court does not determine the grounds of appeal by simply reconsidering the parties’ respective cases at the trial.

In some appellate courts, the practice in criminal appeals is for the entirety of the trial court's file to be provided to the appellate court. Even so, given the adversarial nature of an appeal and the appellate court’s function in hearing an appeal, it is for the parties to place all evidentiary material and submissions before the appellate court which they consider relevant to the discharge of the court’s function and it is for the parties to identify and address the aspects of the evidence adduced at the trial that warrant the conclusion that the verdict was either unreasonable or not.” (footnotes omitted)

45. [45]
    The appellant in the present case seeks to raise a number of inconsistencies in the complainant’s evidence and discrepancies from her mother’s evidence to demonstrate that the verdict was unreasonable.  In R v Miller, the court observed that^[36]:

“It is fundamental that it is not sufficient for an appellant merely to show ‘discrepancies’ or ‘inadequacies’ in the evidence or to show that the evidence is ‘tainted’ or ‘otherwise lacks probative force’. It is necessary to demonstrate that such features appear in the evidence ‘in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted’.” (footnotes omitted)

Was there an unreasonable verdict?

46. [46]
    The appellant first contends that there was an inconsistency between the mother’s evidence that she had provided the complainant with sex education from when the complainant was five, six or seven years old and the complainant’s evidence that she delayed making the complaint because she did not understand that the alleged conduct was wrong until she received sex education in year six at school.  He also contends that this is inconsistent with the complainant telling the police that she knew what a boner was at the time of the alleged conduct from “[t]he sex talk with my mum” and “we’ve also talked about it at school ’cause you need to learn that stuff”.^[37]  While the mother was asked about what sex education she had provided to the complainant during cross-examination her evidence was general and vague.  No question was asked of the complainant herself as to what sex education she had received from her mother and what she remembered.
47. [47]
    The incident occurred some three to four years or more after the conversation, which the complainant’s mother said she had with the complainant.  The complainant may not have recalled or understood what she was told by her mother or connect it with the conduct of the appellant.  The evidence was not necessarily inconsistent.
48. [48]
    Nor was it inconsistent for the complainant to say that it was only when she had sex education at school that she fully comprehended that the conduct was not appropriate.  Her statement that she knew what a “boner was” was a description that she provided to the police at the time of speaking to them, rather than referring to what she knew at the time of the incident.
49. [49]
    This was consistent with the complainant identifying that they talked about that stuff in sex education^[38] and had stated, when describing that she could feel his private part, “[l]ike I could feel it like sticking out…[b]ut I didn’t really know much about that stuff then”.^[39]  Further, while the complainant had said that she did not know the appellant’s conduct was wrong until after she had received sex education classes, she stated that it was the request of the appellant asking her if she could twerk which she said re-enlivened the earlier incident and prompted her to make the complaint to her mother.
50. [50]
    The complainant’s explanations, if accepted by the jury, were credible.  The jury was best placed to make that assessment.
51. [51]
    The second inconsistency was said to arise as a result of the evidence of the complainant that she would have cried if the alleged touching had been inside her shorts.   There is no identified inconsistency in her evidence.  The appellant contends the inference is available that she did not find the touching upsetting.  While that may be so, the other reasonable inference that was open is that she did not understand what was going on and the touching did not hurt her.  It was not inconsistent for her to draw a comparison with how she would have felt if the touching was inside her shorts.  That inference is consistent with the fact that she said at the time she “didn’t have a clue what was going on therefore that’s why I didn’t say anything or do anything.  I was just there, clueless” and “I had no idea what was happening ‘cause I was really young”.^[40]  Insofar as the criticism is a matter of credibility, that was a matter for the jury to assess.
52. [52]
    The third inconsistency is said to arise from the fact the complainant said that she did not press the appellant to get her a phone.  She stated that she had pressed him after the event twice or “[n]ot even that”.^[41]  The contention appears to be that if the phone had been offered the complainant would have pressed it more.  She rejected the suggestion that he had never offered her the phone and she was making it up.^[42]  There is no inconsistency in the complainant’s evidence.  While she agreed in evidence that she had asked her mother to get her a new phone there could be many reasons why she did not press the issue with the appellant.  Her evidence was that she had rejected the appellant’s request on the first occasion when a phone was offered to her, suggesting it was not a matter of great importance to her or that she didn’t believe him.  Or she may have been waiting for her mother to get her a phone.  At best, the appellant raises a matter which goes to credibility but not necessarily so.  It was a matter for the jury whether they accepted her evidence in this regard or not.
53. [53]
    The fourth inconsistency relied upon by the appellant, is that the appellant contends that the complainant’s conduct in posing for a photo with the appellant and her mother and her one-year-old half-sister was “a duplicitous representation to the Appellant and to the world, and cast doubt upon the veracity of the grave allegations about to be made to the Police concerning the Appellant”.^[43]  The submission exaggerates the significance of the photos in circumstances where the conduct of the complainant and her mother was not inconsistent with what had occurred.  The photos, which are exhibits 3 and 4, showed the complainant was not next to the appellant.  The appellant was holding her one year old half-sister with a gap between he and the complainant’s mother and the complainant being hugged by her mother.  The jury could reasonably have accepted that the complainant and her mother participated in the photo because of her young sister’s birthday, bearing in mind it was two years after the touching incident and was consistent with the fact that the complainant’s mother had stated that she wished for her daughter’s first birthday to be her day.  The inconsistency appears to be, although not clearly identified on behalf of the appellant, that the complainant had told her mother two days before the first birthday party of what had occurred and had been upset and was then posing for photos with the appellant.  That ignores the fact that the complainant had continued to interact with the appellant for some two years.
54. [54]
    The complainant’s evidence was also that she would have been trying to avoid him at the party but “didn’t want to be rude”.^[44]  The jury could have accepted that her partaking in photographs for her sister’s birthday is consistent with that statement of not wanting to be rude.  There is no real inconsistency in terms of her evidence or conduct which undermined the credibility of the complainant’s evidence.
55. [55]
    The fifth complaint is that there was a vagueness and uncertainty in the complainant’s evidence as to when the incident actually happened.  That includes her agreeing, during cross-examination, that she was in ten in 2018 which makes her in grade six in 2019 not grade five.  The question was factually wrong, as was later conceded by the defence counsel.  Notwithstanding the complainant’s agreement, the question required the complainant to do a calculation in her head and is explicable on the basis she was confused.
56. [56]
    While the complainant could not be precise about her age or what year of school she was in, she gave evidence of a number of matters supporting the fact that the incident had occurred.  The evidence of the complainant was consistent that she was in year five or six when the incident occurred, that it occurred before she had sex education classes and while she was on holidays and her mother was at work and that her grandmother was not there.  The complainant’s evidence that she was being babysat by the appellant on a Sunday or when she was home from school holidays when the grandmother couldn’t, was consistent with her mother’s evidence that the appellant had babysat the complainant on such occasions.  Her grandmother also gave evidence that while she often minded the complainant, there were occasions when she couldn’t, including because of work commitments.  There was evidence from the complainant’s mother that the appellant was living with them at Mount Low where the incident was said to have occurred.  The appellant tried to contend that the complainant’s evidence that the incident occurred on a Sunday was inconsistent with the mother starting work later on Sundays.  That does not necessarily follow, but in any event, the complainant said it was a Sunday or during the school holidays.
57. [57]
    The inconsistencies identified by the appellant were matters for assessment by the jury who had the advantage of seeing the witnesses give evidence.  None of the matters undermine the credibility of the complainant’s evidence in a way to cause doubt of how the incident occurred.  They do not undermine the Crown case such that this Court would conclude an innocent person may have been convicted.
58. [58]
    The appellant also contends that there were discrepancies between the evidence of the complainant and her mother as to what she told her mother on 1 December.  The discrepancies in the details were matters of little significance and in fact support the honesty of the accounts given.  Importantly, what was consistent between both the complainant’s evidence and her mother’s evidence was that the complainant had then told her mother that the appellant had asked her to twerk and that led her to saying that the appellant was touching her private parts, that she told her mother while she was driving, that they both got upset and that her mother pulled the car over to the side of the road.
59. [59]
    The jury were also given the direction in relation to preliminary complaint, that consistency between what the complaint was and the complainant’s evidence could bolster the complainant’s credit, but similarly that any inconsistency in what she said in her evidence and what she said to her mother and grandmother may cause the jury to have doubt about her reliability or credibility.^[45]
60. [60]
    The appellant further states that there is an anomaly in the mother’s testimony insofar as having been told the appellant had rubbed her daughter’s vagina when she was younger, the mother’s evidence was that she had gone home and confronted the appellant “about asking her to twerk” and she had then kicked him out.^[46]  It was never put to the mother in cross-examination that the complaint of touching was not made to her by the complainant.  Not confronting the appellant is explicable given the decision to delay going to the police.  The fact that the complainant was not taken to the police until 5 December 2022, was explained by the mother on the basis that they had her youngest daughter’s first birthday on 3 December 2022 and by the fact that she had family support having told them what occurred.  Such an explanation was capable of being reasonably accepted by the jury acting rationally.
61. [61]
    As to other matters raised by the appellant in relation to the complainant’s evidence, they are not matters of any substance which could have reduced the probative force of the evidence.  While the complainant said she told her mother after her sister’s birthday, the complainant had immediately corrected that and said she had told her mother of the sexual abuse of the appellant before her younger sister’s first birthday party.  As to the allegation that the complainant’s description of feeling the appellant’s penis was indicative of a lack of frankness in circumstances when she had not shown any similar inhibition in relation to referring to her vagina or clitoris, the submission is without substance and frankly nonsensical.
62. [62]
    The appellant’s trial counsel had squarely put to the complainant and to the jury that the event never occurred and raised many of the issues as to the complainant’s evidence which the appellant now seeks to raise.  The appellant has not identified any matters which meant that a jury acting rationally should have entertained a reasonable doubt as to the applicant’s guilt.  The complainant’s credibility was squarely put in issue before the jury.  The jury were given very clear directions and informed in the summing up by the trial judge that “[i]n this particular trial, the real issue, the only issue is whether you can be satisfied beyond reasonable doubt that this incident occurred as described by the complainant”.^[47]
63. [63]
    The complainant’s account of what had occurred generally was consistent in terms of what she had stated in her evidence-in-chief and cross-examination.  The inconsistencies and discrepancies to the extent they existed did not undermine the complainant’s evidence and the Crown’s case and do not support the fact that the jury acting rationally ought nonetheless to have entertained a reasonable doubt.^[48]  None of the matters, either alone or cumulatively, demonstrate that those features appear in the evidence “in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted”.^[49]
64. [64]
    On the whole of the evidence, it was unquestionably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of which he was convicted.
65. [65]
    The guilty verdict was not unreasonable and was supported by the evidence.

Inadequate directions

66. [66]
    In order to establish that a miscarriage of justice has occurred where it is alleged a direction should have been given or the one given is otherwise inadequate, the appellant must establish that “it is ‘reasonably possible’ that the failure to direct the jury ‘may have affected the verdict’” (footnotes omitted).^[50]  In making that assessment “the Court must have regard to the gravity of the error misdirection or significance of the inadmissible evidence as well as the strength of the case against the appellant” (footnotes omitted).^[51]  A failure to seek a direction is significant to the question whether there has been a miscarriage of justice but it is not determinative.^[52]

Elements of offence

“Indecency”

67. [67]
    The appellant contends that the trial judge gave insufficient directions as to the second element of the offence, namely, indecency.
68. [68]
    In that regard the trial judge stated:^[53]

“The second element that the prosecution must prove is that the dealing was indecent.  ‘Indecent’ bears its ordinary, everyday meaning, that is, what the community regards as indecent, and it is what offends against currently accepted standards of indecency and must always be charged in the light of time, place and circumstances.  I do not think it is in dispute that if an adult touched a child in the way alleged in this case, that it would be anything other than indecent, but, of course, these are matters for you.”^[54]

69. [69]
    The direction which her Honour provided was shorter than that proposed in the Benchbook direction.  According to the appellant, had the jury been directed properly there is a real possibility the jury may have reached a different verdict.  The appellant submits that a properly directed jury would have understood that this element required them to closely examine the relationship between the appellant and the complainant including the inconsistencies and discrepancies in the complainant’s evidence.
70. [70]
    There are a number of reasons this ground must fail.
71. [71]
    First, the effect of the full Benchbook direction does not call for an examination in relation to this element of the inconsistencies and discrepancies in the complainant’s evidence.  There was, however, a general direction given as to the assessment evidence in relation to the creditability and reliability of evidence.
72. [72]
    Secondly, the directions in the Benchbook only serve as a guideline and are not prescriptive.^[55]  The scope of a direction is necessarily driven by the real issues in dispute at trial notwithstanding that the Crown bears the onus.  The trial judge is responsible for assessing what the real issues in a case are and directing the jury “on so much of the law as the jury needs to know to decide those issues”.^[56]  In the present case the appellant submitted that the incident treatment never occurred, not that the touching was not indecent.  While the jury had to be satisfied of the element beyond reasonable doubt, there was no cross-examination or submission suggesting that if the complainant’s version of events was accepted that the touching of her in the way described by the appellant would not constitute indecency.  The fact the touching was indecent was supported by the disparity in age between the appellant and the complainant, the fact that the appellant was in a father figure role and the nature of the touching.  The direction was sufficient in the context of this case for the jury to determine whether this element had been proven by the Crown.  No redirection was sought by the appellant of the direction.

“Under care”

73. [73]
    The appellant contends that the direction given with respect to the requirement that the alleged offence occurred while the complainant was under the appellant’s care was deficient.  In that regard her Honour directed:^[57]

“The final element, you might also think, is not in dispute, and that is that, at the time, the child was under the defendant’s care. Again, you might think, if this, in fact, happened as the complainant described, then she was being babysat, and so you might think that there is no real dispute that, if she was being babysat, she was under the defendant’s care.”

74. [74]
    It was not in contention at trial that the appellant had babysat the complainant from time to time.
75. [75]
    The complaint of the appellant is that the learned trial judge effectively instructed the jury to accept the gravamen as the charge namely, that it was on the day when the appellant was babysitting the complainant that he had indecently dealt with her.  The direction had no such effect.  Given the fact that the complainant’s evidence was that the appellant was babysitting her on that day, proof of this element was dependant on the jury accepting her version of events.  That was made clear by the trial judge.  There was no further direction required.

No direction given as to failure to call witnesses

76. [76]
    The appellant complains that the trial judge failed to give a direction to the jury regarding the Crown’s failure to call the complainant’s father and her aunt, both of whom the complainant was said to have told what had occurred.  According to the applicant, a direction was required in accordance with Jones v Dunkel.^[58]
77. [77]
    Evidence was given by Officer Wren, who had been involved at the time, that the aunt did not wish to be involved and that he had not been able to contact the father, albeit he can only remember one occasion when he tried to do so.
78. [78]
    No direction was asked for by the defence in relation to the witnesses who were not called.
79. [79]
    The rule in Jones v Dunkel was recently discussed by the High Court in Dyers v The Queen.^[59]  Such direction, where prosecution fails to call a witness, should generally not be given.  Gaudron and Hayne JJ in Dyers observed:^[60]

“… as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution’s failure to call the person in question was in breach of the prosecution’s duty to call all material witnesses.

As was held in R v Apostilides, it is for the prosecution to decide what evidence it will adduce at trial. The trial judge may, but is not obliged to, question the prosecution in order to discover its reasons for declining to call a particular person, but the trial judge is not called upon to adjudicate the sufficiency of the reasons that the prosecution offers. Only if the trial judge has made such an inquiry and has been given answers considered by the judge to be unsatisfactory, would it seem that there would be any sufficient basis for a judge to tell the jury that it would have been reasonable to expect that the prosecution would call an identified person. There would then be real questions about whether, and how, the jury should be given the information put before the judge and then a further question about what directions the jury should be given in deciding for itself whether the prosecution could reasonably have been expected to call the person. Only when those questions had been answered would further directions of the kind contemplated by Jones v Dunkel have been open and they are not questions which arise in the present matter. Nor is it necessary to consider whether some direction of this kind can be given when a party, who has called a witness, does not ask questions of that witness about a particular topic.” (footnotes omitted)

80. [80]
    In the present case, the only relevant evidence the father and aunt could give was evidence of the preliminary complaint.  Explanations were given by the Crown as to why there was a lack of evidence from either witness through Officer Wren.  Two witnesses to whom preliminary complaint was made were called, namely the complainant’s mother and grandmother.  The trial judge gave the appropriate direction as to the relevance of evidence of preliminary complaint and how could be used by the jury.
81. [81]
    It is a matter of speculation as to the evidence either the father or aunt could give.  There is no basis to suggest that there was any apparent failure by the prosecution to call the person in breach of the prosecution’s duty to call material witnesses.  No Jones v Dunkel direction was required.  Unsurprisingly, no such direction was sought.

No direction given regarding delay

82. [82]
    The appellant further complains that the trial judge erred by failing to give directions to the jury in relation to delay or the forensic disadvantage caused by the complainant’s delay in the reporting of the matter.  In that regard they refer to Longman v The Queen.^[61]
83. [83]
    In Queensland directions as to delay are regulated by s 132BA of the Evidence Act 1977 (Qld).  It modifies the traditional direction based on Longman v The Queen.^[62]  A direction as to delay is to be given by a trial judge “if the judge is satisfied the defendant has suffered a significant forensic disadvantage because of the effects of delay in prosecuting an offence the subject of the proceeding.”^[63]
84. [84]
    Mere delay itself is not sufficient to enliven the discretion.  In the present case there was a delay of approximately two years between the alleged incident and the complaint as to the offence and some three years and four months to trial.  The appellant in oral submissions contended that disadvantage was suffered by the appellant because of the fact that no particular day was nominated for when the offence occurred, and that rather the indictment specified that it was between 28 August 2019 and 29 August 2021.  The appellant contends that given the appellant was a fly in fly out worker, the delay affected his ability to identify whether he was in fact present at the time the alleged offence occurred.
85. [85]
    The period over which the offence was said to have taken place was nominated and the nature of the offence that occurred was sufficiently particular in terms of what was said to have occurred.  The complainant’s evidence identified the incident occurred when the complainant was being babysat by the appellant, it occurred on school holidays or a Sunday and that it occurred at the Mount Low house.  That was sufficient for the appellant to be able to respond to the allegations.
86. [86]
    It is not evident that the delay complained of resulted in the appellant being at a disadvantage in testing the allegations which would otherwise have been open to him.
87. [87]
    The appellant has not identified any “significant” forensic disadvantage requiring the trial direction to have been given.  That likely explains why no direction was requested at the trial.
88. [88]
    There was no error in not giving the direction.

Inconsistency

89. [89]
    The appellant contends that the trial judge failed to give adequate directions to the jury regarding inconsistencies in the complainant’s evidence particularly as to the weight the evidence should be given as was discussed by Justices Deane, Toohey and Gaudron in Morris v The Queen.^[64]  That case, however, was in the context of evidence of a prior inconsistent statement which was not the case here.
90. [90]
    The standard direction as to inconsistencies in evidence, as provided for in the Benchbook, was given by the trial judge as well as the direction in relation to preliminary complainant evidence.  No direction was sought nor was one required.

Motive to lie

91. [91]
    The appellant complains that the trial judge failed to traverse sufficiently the evidence concerning the motive and cogency of the admitted evidence of motive from Crown witnesses, particularly the complainant and the mother.
92. [92]
    The trial judge gave the standard Benchbook direction regarding the motive to lie.  The trial had only been a one day trial with the evidence having been given in the morning and the closing address and addresses were completed by lunchtime.
93. [93]
    In providing the direction her Honour referred to the evidence identified by defence counsel in their summing up to demonstrate that the complainant had a motive to lie.^[65]  It was not necessary for the trial judge to recanvas all of the evidence which had only been given that morning.  Nothing more was required in the circumstances.  No redirection was sought in that regard.

No redirection

94. [94]
    The appellant has not demonstrated any miscarriage of justice as a result of any of the directions not having been given as the appellant contends.
95. [95]
    In R v Carlton^[66] Bowskill J (as her Honour then was) observed:

“Finally, I note again that at trial submissions were invited on the content of the summing up prior to it being delivered and no redirections in relation to this aspect of it were sought. As McMurdo JA observed in R v Murray … this would not prevent appellate intervention, where it is shown there has been a miscarriage of justice. However, it is a relevant consideration that where, as here the appellant was represented at the trial by experienced counsel and the learned trial judge has provided the parties with the opportunity to have input into the content of the directions to be given in relation to important issues arising in the trial. It is consistent with the efficiency and fairness of the criminal justice process, both at first instance and on appeals, that due regard be paid to the position taken by the legal representatives for the parties at the trial in relation to the content of the summing up, just as it is in relation to forensic and strategic decisions otherwise”.^[67]

96. [96]
    It is similarly relevant in the present case, that directions were discussed with counsel by the trial judge before summing up and no redirections were sought after the summing up.  While nothing turns on that in the present case, as for the above reasons, the trial judge’s directions were not lacking or inadequate, the fact that no miscarriage of justice occurred is supported by the fact that no direction or redirection was sought by counsel as to the directions.  That is consistent with the fact the trial judge’s summing up was directed at the matters in issue between the parties and canvassed the matters relevant to the jury carrying out their task.

Conclusion

97. [97]
    The appellant has not established that the verdict was unreasonable or could not be supported by the evidence.  Nor has the appellant established that the trial judge failed to adequately direct the jury.  The appeal must fail.
98. [98]
    The appellant has not demonstrated any miscarriage of justice.

Proposed order

99. [99]
    The order of the court should be that:

1. The appeal is dismissed.