R v WCH[2025] QCA 124

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  On 24 April 2024 the appellant was convicted after a 3-day jury trial in the District Court on each count of a five-count indictment alleging sexual offending against his daughter on dates unknown in the 5-year period between 31 December 2014 and 26 October 2019.
2. [2]
   The complainant daughter was a little over 3 years old at the start of the period identified in the indictment and a little over 8 years old at the end of that period.
3. [3]
   For each of the first three counts, the indictment alleged that the appellant had unlawfully and indecently dealt with the complainant and had pleaded the aggravating features of her age, that she was to his knowledge his lineal descendant and under his care, and that the offences were domestic violence offences.  The Crown had particularised those counts as follows:

   1. Count 1: the appellant touched the complainant’s vaginal area on the outside of her clothing with his hand/s.
   2. Count 2: The defendant touched the complainant’s bottom on the outside of her clothing with his hand/s.
   3. Count 3: The defendant’s penis touched the complainant’s vaginal area.
4. [4]
   The wording of counts 4 and 5 differed only from the previous three counts in that the indictment alleged the appellant had offended by unlawfully permitting himself to be indecently dealt with by the complainant.  The Crown had particularised those counts as follows:

   1. Count 4: The complainant touched the defendant’s penis with her hand; and
   2. Count 5: The complainant’s vaginal area came into contact with the defendant’s penis.
5. [5]
   On each count the appellant was sentenced to 18 months’ imprisonment, to be suspended after his having served 9 months’ imprisonment, with an operational period of 2 years.
6. [6]
   The appellant appeals his conviction on all counts on the sole ground that the verdicts were unreasonable or cannot be supported having regard to the whole of the evidence.
7. [7]
   For reasons which follow, the appeal should be dismissed.

Preliminary observations about the evidence of children

8. [8]
   The outcome of the trial in this case was entirely dependent on the jury having accepted the evidence of the complainant.
9. [9]
   That evidence was given evidence from the complainant in the form of –

   1. her recorded interview with police on 28 October 2019 (when she was 8) tendered pursuant to s 93A of the Evidence Act 1977 (Qld);
   2. her pre-recorded evidence on 24 September 2021 (when she was 10) during which she affirmed the truth of what she had told police and upon which she was cross-examined, which was tendered pursuant to s 21AK of the Evidence Act; and
   3. her further pre-recorded evidence on 12 April 2024 (when she was 12) when she was further cross-examined, which evidence was also tendered pursuant to s 21AK of the Evidence Act.
10. [10]
    It was common ground before this Court that these observations made by Sofronoff P in R v Allen (a pseudonym)^[1] were appropriate and should inform any assessment of the complainant’s evidence:

“While the criminal standard of proof applies just as much to the evidence given by a child as it does to the evidence given by an adult, it is well understood and accepted that the factors taken into account to assess the reliability of the evidence of young children are not the same as those affecting the reliability of the evidence of adults. A child may not view events with the understanding of an adult, may be unable to recall important details that would be prominent in an adult’s recollection and may lack the linguistic ability to recount events or to explain them. Immaturity may lead a child into avoidance techniques when being questioned. Most importantly, as everyone who has any experience of young children knows, although in common with adults, the recollection of a child will be more accurate close in time to the relevant events, a very young child’s memory of events tends to fade very quickly.

Section 93A of the Evidence Act is founded upon the sound assumption that the earliest account given by a young child is likely to be the most accurate account. It is this assumption which justifies a prosecutor asking a child, who is giving evidence pursuant to s 21AK at a later trial, whether the account tendered under s 93A is true and it is the assumption which can justify a jury’s acceptance of an affirmative answer. It is why s 2lAA states, as has already been pointed out, that one of the objects of Division 4A of Part 2 of the Act is to preserve, to the extent practicable, the integrity of the evidence of an affected child. The result of the practice that has developed around the use of the provision is that the jury has, potentially, an accurate account of events because it incorporates the contemporaneous choice of language, knowledge, experience, gestures and demeanour of a child witness rather than the account given by a child appearing as a witness, a long time later in the difficult sitting of a criminal trial, when the account may suffer not only from failures of recollection, the stressors inherent in a formal trial, but also from the effects of gained knowledge, experience and maturity.”

11. [11]
    His Honour’s identification of features which are not uncommon in cases involving child complainants was referred to with approval by Burns J (with whom Morrison JA agreed) in R v Groundwater.^[2]

References to the complainant’s evidence during opening addresses at trial

12. [12]
    The particulars of the five counts of the indictment were reduced to writing and placed before the jury during the opening by counsel for the Crown.
13. [13]
    Counsel for the Crown suggested that the evidence of the complainant supported the conclusion that the appellant’s offending occurred on three separate occasions. 
14. [14]
    The first occasion encompassed the offending comprised in counts 1, 2 and 3.  Counsel suggested:

“You’ll hear her describe that she was in the defendant’s bedroom with him at his house one evening when she went over to stay with him. She was lying on the bed with him. She described that he touched her on her ‘wee’. That’s what she described. And you’ll hear evidence that the Crown says that’s her genitalia area; and that he had touched her with his hands. So that is count 1.

She then said that in the same episode, he touched her on her buttocks – the rear end. And that is count 2. And it’s alleged that when these offences occurred, there was at least some clothing that she was wearing. She then described that he was kneeling on the bed and he pulled down his pants and he sat on her so that his penis had come into contact with her genital area. That’s count 3.”

15. [15]
    The second occasion involved count 4.  Counsel suggested:

“She also described recalling an occasion where she touched his penis. That is count 4. And she says that’s a different time than counts 1, 2 and 3.”

16. [16]
    The third occasion involved count 5.  Counsel suggested:

“And she described another occasion where she was in his bed in the bedroom. She pulled down her pants and sat on top of him and described bringing her vaginal area into contact with his penis. And you’ll hear her describe his penis as ‘doodle’. It’ll appear that her underwear was still on while that occurred. And that is count 5.”

17. [17]
    For his part, counsel for the appellant told the jury that the appellant, by his plea of not guilty, had denied the alleged offending.  He emphasised that the Crown alleged that the five counts of offending occurred on three distinct episodes.  He told the jury that they were going to hear different things that the complainant said in relation to the allegations, not just the summary that counsel for the Crown had given them.  He suggested to the jury that the critical issue in the case was whether they accepted that the alleged offending occurred beyond reasonable doubt.  He invited them to consider issues of credibility and reliability of all witnesses, but especially the complainant.

The evidence at trial

Overview

18. [18]
    The complainant was born in July 2011, consequent upon a very brief relationship between the appellant and the complainant’s mother which had ended in October 2010.  The complainant resided principally with her mother, but from 2015 Court regulated custody arrangements had provided that the appellant had sole care of the complainant from Thursday afternoon to Monday, every fortnight, and alternating weeks during school holidays.
19. [19]
    In addition to evidence from the complainant, the Crown adduced the following evidence at trial –

    1. preliminary complaint evidence from the complainant’s mother and maternal grandmother (who gave evidence of the complainant’s disclosures to them on 26 and 27 October 2019); and
    2. the record of interview between police and the appellant on 5 February 2020, in which the appellant had denied the offending.
20. [20]
    The appellant neither gave nor called evidence.

The complainant’s evidence: the police interview on 28 October 2019

21. [21]
    The recording of the police interview was played to the jury at the trial.  The jury had transcripts with them as this occurred.
22. [22]
    After the two interviewing officers had introduced themselves, they elicited the complainant’s initial description of the entirety of the offending in this passage: (complainant’s name removed)

“Q: So um [name removed] tell me what you’ve come here to talk to me about today? Do you know why you’ve come here to talk to me about today?

A: About Dad.

Q: About Dad? Okay, so tell me everything about Dad and start at the beginning.

A: So at night time he was in the bed.

Q: Mmhmm.

A: And then he, he, I was in the bed.

Q: Mmhmm then what happened?

A: And then he touched me.

Q: And then what happened?

A: And then he was lying down.

Q: He was lying down, and then what happened?

A: And I was lying down in his bed.

Q: Mmhmm. Mmhmm? And then what happened?

A: And then um he, he pulled his pants down in front of me.

Q: Mmhmm. Mmhmm? And then what happened? So um you were lying down in his bed and he pulled his pants down in front of you, and then what happened?

A: And then he sat on me.

Q: Then what happened?

Q: Can you tell us what happened next [name removed]?

A: Then, then I pulled my pants down.

Q: Okay. And then what happened?

Q: And then I sat on him.

A: Okay. And then what happened?

Q: That’s it.”

23. [23]
    It may be noted that in this first recounting of the offending, the complainant described the offending as though it all happened on one occasion when the complainant and the appellant were in a bed.
24. [24]
    Later, the questioning officer established that the bedroom concerned was in the appellant’s house and in his bedroom.  When asked how she knew it was at night time, she responded “because I remember”.
25. [25]
    She was then asked to tell everything about the appellant touching her and her answer was that he touched her with his hands “on the wee and bottom”.  The questioner sought further detail but she could not remember any.  She said that it did hurt when he touched her on both places.  The questioner enquired whether the touching was over the top of her clothes or under and she said it was both.  The questioner returned to the same subject and got the same answer.  Then the complainant voluntarily corrected her answer and said “it was over the clothes”.
26. [26]
    It may be observed that the evidence thus far in the questioning, if accepted, would prove up counts 1 and 2, but nothing else, the evidence about “sitting” not yet clearly being related to anything.
27. [27]
    The questions then asked what happened after the appellant had touched her over her clothes, what was she doing?  She said that she was touching him.  The questioning then clarified that she meant touching him on “his wee”, another name for which was his “doodle”.  This happened before and after when he was touching her.  She could not remember further detail of how she was touching it or how it happened.  Further questioning elicited that it occurred in the appellant’s bedroom at his house and that she thought it was not at the same time that he touched her, but was another time.  She could not recall when it was. 
28. [28]
    It may be observed that evidence, if accepted, would prove up count 4.
29. [29]
    The questioner then returned to when the complainant said that the appellant pulled his pants down in front of her and asked to be told everything about that.  Initially she said she didn’t remember, but the questioner reminded her that she said he pulled his pants down in front of her and then he sat on her, and then asked to be told everything about him sitting on her.  She was asked how she felt and she said “I felt nothing or something, I think. I felt scared.”  When asked which part of her body he sat on, she said “my wee”.  When asked which part of his body touched her body she responded, “his doodle”.  She was asked whether this was the same time as the time when he touched her with his hands, or another time and she said she thought it was the same time.
30. [30]
    It may be observed that evidence, if accepted, would prove up count 3.
31. [31]
    The questioner then returned to when the complainant said that she pulled her pants down and asked to be told everything about that.  Initially she said she didn’t remember, but the questioner reminded her that she said she pulled her pants and then she sat on him, and then asked to be told everything about her sitting on him.  When asked, when she sat on him, which part of her body she used, she said “my wee”.  When asked which part of his body she was sitting on, she responded “his doodle”.  She was asked what then happened, and she said that was it.  She was asked if there was anything she could remember about his doodle, she said it “looked like it was fat” and, a little later, that it “looked… like it was cold”.  She did not know or remember what she meant by the latter description.  She was asked whether it was the same time as when he sat on her and she said no.  He was wearing a top and shorts.  She initially described them as black and then thought they were blue.
32. [32]
    It may be observed that evidence, if accepted would prove up count 5.
33. [33]
    She was asked whether anyone else knew what had happened to her.  She said none except her mother, her grandmother and “Uncle Tim”.  She said they told her not to tell anyone, but she was allowed to tell the police.  She was asked whether anyone had told her what to say to the police today, and she said no.

The complainant’s evidence: the first pre-record on 24 September 2021

34. [34]
    It should first be observed that the complainant was 8 when interviewed by police.  By the time the first pre-record occurred, almost two years had passed and she was now 10.
35. [35]
    The recording of the first pre-record was played to the jury at the trial.  The jury had transcripts with them as this occurred.
36. [36]
    In chief the complainant acknowledged having viewed that day a recording of the police interview.  She acknowledged that she had told police the truth.
37. [37]
    In cross-examination counsel first asked her whether she remembered speaking to the two police officers.  She said that she “sort of” remembered.
38. [38]
    She said that when she stayed at her father’s house that she would sleep in her own room at night, but she accepted that there were some times if she was scared that she’d go into her father’s room.
39. [39]
    She was asked a number of questions about her parents’ relationship but was unable to shed any light on it.  She did acknowledge that before she went to the police and told them about her father, her mother had said that her father was “a bad man, a bad daddy.”  She answered in the affirmative but was unable to remember when her mother had said that to her.  She acknowledged that her mother had asked her whether her father had touched her but could only say that that had occurred “a long, long time ago” and not at about the time her mother had told her he was not a good dad.
40. [40]
    She was asked about the first time she had told her mother and her grandmother about when her father had touched her.  She said it was in the TV room where she was watching a movie with her mother and her grandmother.  She could not recall what she said to them.  She did not recall whether she ever told her mother that her father had touched her on the couch in the loungeroom.
41. [41]
    Questioning then turned to what she had told the police in the part of the interview which related to counts 1 and 2.  She acknowledged that she had said that the appellant had touched her “wee” and her bottom.  But in relation to the latter she was asked whether that was with his hands as well and she said “I can’t remember.”  She answered in the negative to the question “Do you actually remember now him touching your privates or your wee”.  She remembered that she had told the police that he had touched her wee and her bottom over her clothes but could not remember saying that he touched them under her clothes.  When pressed for detail as to whether the touching was under pyjamas and on top of her undies or on her actual skin, she thought it was over her undies but acknowledged that she did not have any memory of it.  She did not recall telling police that it hurt when her father touched her over clothes on her bottom and her wee.  She answered in the negative the question “Are you sure that you weren’t talking about him smacking you on your bottom when you were naughty, maybe?”
42. [42]
    I observe that before this Court counsel for the appellant relied on the answer that she could not remember whether he touched her bottom with her hands as well, as effectively “reneging” on the evidence concerning count 2 as given in the police interview.  This submission is an overstatement.  The concession by the complainant was that she could not, at the time she was being asked questions, remember what had happened.  That did not cause any harm to the strength of her evidence given two years earlier that she did remember, especially when one brings to mind the features of the evidence of young children referred to by Sofronoff P in Allen.  The same observations can be made about her other answers indicating lack of memory.  And it would certainly have been open to the jury to regard the use of the negative in the question last recorded as sufficiently confusing that the negative answer should not be regarded as affirming the truth of the premise of the question.
43. [43]
    The questioning then turned to some peripheral details as to the part of the alleged offending so far dealt with.  The complainant affirmed that it happened during the night.  She remembered that because she looked out the window and saw it was dark.  She did not tell her father’s mother afterwards.  She did not know what happened after her father touched her.  She was asked:

“Is that because now you can’t remember it happening at all?---It did happen, but I can’t remember much.”

44. [44]
    The questioning then turned to the part of the interview which related to count 3.  She was asked questions to little effect about the physical position of her father when he pulled his pants down.  She said he was lying at the bottom of the bed and had his pants down.  She was not able to explain where her father’s feet were when it happened.  She could not recall how she felt, but recalled it felt heavy.  She said thought her pants were not pulled down as well, but was not sure because she could not remember.  She could not remember how he got off her.  She was asked:

“Are you sure, thinking back, that this actually happened?---Yeah.

And you’re sure you haven’t seen this on a phone or seen this on the computer and thought it might’ve happened to you?---No.  It---

All right---? --- happened.”

45. [45]
    The questioning then turned to the part of the interview which related to count 4.  The questioning was to little effect and contained apparent misunderstanding of at least one question framed in the negative.  The relevant passage was:

“You tell police that you touched Daddy’s doodle? Sorry?---Yeah.

But you can’t remember doing that now, can you?---I think so.

You don’t think so?---Yeah.

So do you remember where this might’ve been?---In his room.

And do you remember that now because you watched the video this morning?---Yeah.

And what you told police was that you touched his doodle with your hands?---Yeah.

How did his doodle get out of his pants, do you remember?---No.

Okay. And do you know what time of day this was?---No.

And Nanny was there? Maureen?---Yeah.

And was the door open again?---I think so.

Can you remember Daddy saying anything to you?---No.

All right. And did you say anything?---No.

And do you have any memory at all about how you might’ve touched his doodle?---No.

Okay because you told the police that you didn’t know how it happened?---Yeah.

And that’s the same now; you don’t remember?---Yeah.”

46. [46]
    The questioning then turned to the part of the interview which related to count 5, to little effect apart from establishing that the complainant had little present recollection of the circumstances of the offending she had described to police.
47. [47]
    The cross-examination concluded with these questions: (complainant and appellant’s names removed)

“Yes. Okay. So, [complainant’s name removed], I’ve got some things to say to you, all right? And you just need to tell me if something happened or it didn’t, all right?---Yeah.

So, [complainant’s name removed], your daddy [appellant] never touched you on your wee or your privates?---He did.

He never touched you in the way you’ve spoken about on your bottom?---No.

He never touched you on your wee under your clothes on top of your pants?---Yeah.

Are you saying he did?---Yeah.

He never touched you on your bottom on top of your undies?---No .

He didn’t?---No.

Right. He never pulled his pants down and sat on you with his doodle touching your privates?---Yeah.

He never had you touch his penis?--- I – no.

Sorry?---No.

So he didn’t – so do you mean by that that you didn’t touch his penis or you did?---I did.

You did.  Okay.  And you never pulled your pants down and sat on Daddy with your privates touching where his doodle was?---I – no.

So that didn’t happen?---I don’t think so.”

48. [48]
    I observe that before this Court counsel for the appellant relied on that exchange in support of the previous proposition that the complainant was effectively “reneging” on the evidence concerning counts 2 and 5 as given in the police interview.  This submission too is an overstatement, although perhaps not as much as the previous similar submission.  There is certainly some support for the submission, but it is also evident from the transcript that the negatives in form of the questions caused the complainant some confusion. 
49. [49]
    An ineffective attempt was made to clarify the complainant’s understanding in this exchange in a brief re-examination:

“When you’ve been asked questions by the other lady lawyer, you’ve said that things did happen but now you can’t remember much?---Yeah.

So can I ask you, the things that you told the police that you watched on the tape today, did those things happen?---Some of them.

Okay. And is it just that today when you were asked questions, you can’t remember all of the detail?---Yeah.”

50. [50]
    I observe that before this Court the appellant sought to suggest that the concession made in the second question and answer should be interpreted as a general statement that some of the things did not happen and should be regarded as tainting all the evidence given by the complainant.  The jury obviously did not so regard it.  It was open for them to form that view.  Indeed, in context, they may well have thought that it was a question directed to the quality of the complainant’s present memory of those things, so that the answer should be interpreted as a statement that she could now say, from her current memory, only that some of the things did happen.  It would be open to the jury not to regard the answer as a negation of her statement in chief that she had told the police the truth in her s 93A statement.

The jury question concerning the cross-examination during the first pre-record

51. [51]
    The Court had adjourned for the day after the first pre-record had been played to the jury.  Court reconvened the following day with the intention that the day would start with the playing of the second pre-record.
52. [52]
    However, the trial judge had in the intervening time received a note from the jury with two questions:

“Did [cross-examining counsel’s] cross-examination of the witness meet the rules for evidence in Queensland? For example, double negatives, confusing phrasing, intimidation.

Should a child welfare representative have been in the room during the police interview?”

53. [53]
    The trial judge discussed with counsel for the parties the appropriate response.  During that discussion and again after having sought submissions, his Honour determined that it was appropriate to leave with the jurors the transcripts of the evidence of the complainant.  That involved returning to them the transcripts of the police interview and of the first pre-record and permitting them to keep those transcripts and the transcript of the second pre-record, once played.
54. [54]
    When the jury returned, and before the second pre-record was played, the trial judge read out the two questions from the jury’s note and directed the jury in the following terms:

“What I want to explain to you is this, that the pre-recording, you would recall, was conducted in a courtroom. It wasn’t this courtroom. It wasn’t this court building. It seemed to me to have been the Beenleigh courthouse, but it was presided over by a judge. On that occasion, it was Judge Dann who presided over that pre-recording, and all the same rules apply as if the evidence was being given live in a court. So Judge Dann’s responsibility is the same as mine in this trial, and that is to ensure that the trial is a fair trial.

It’s important to also understand that there is a Crown prosecutor in the room as well as defence barrister, [cross-examining counsel] was the defence barrister and [crown counsel] was the prosecutor on the occasion, so that if there are questions which are properly unfair or confusing or thought to be so that the prosecutor has the ability to object, and indeed, Judge Dann has the responsibility to intervene even in the absence of objections if it’s thought that there was an issue with the questions or the nature of them.

There’s nothing about the manner in which the cross-examination or indeed, the evidence that was led by [crown counsel] as well in any way didn’t comply with the overriding obligation for fairness. Of course, what you make of the evidence and whether you think the answers that were given were in response to a confusing or double negative so that they don’t mean what they might appear to mean is entirely a matter for you in your assessment of the evidence when the time – when the time comes.

In relation to the second question, the short answer is no, there is no requirement for a child welfare officer to be present when these interviews are conducted. I was planning and will, when we’ve finished hearing the recording, say something to you about the process of these what we call 93A statements, but it’s an interview with a police – between the police and a child which becomes the evidence. It’s important to understand that the police that conduct those interviews are trained to do that, and so the process has been adopted in that way, and it’s common now that is the way that evidence of children is presented in cases such as this.

Again, though, what you make of the answers and the questions that were asked and whether you think the answers are credible and reliable is entirely a matter for you, and of course, part of your assessment might be the nature of the questions that were asked and the responses that were given to it, all entirely for you in your determinations.”

55. [55]
    No complaint was made on appeal concerning the way in which the trial judge dealt with the jury questions.  It would be inappropriate to seek to infer from the question what the jury made of the cross-examination.  I have already observed, however, that I have formed the view that at least some of the questioning appeared to confuse the complainant and that would, to my mind at least, reduce the reliability of the answers given to the questions as a basis for impugning the evidence given in response to police questioning some two years earlier.  It would certainly have been open to the jury to form the view that the answers that were given in response to ill-framed or confusing questions did not mean what they might have appeared to mean. 

The complainant’s evidence: the second pre-record on 12 April 2024.

56. [56]
    The second occasion for pre-recorded evidence by the complainant occurred because on 20 February 2024 a judge of the District Court had ruled in favour of an application by the appellant pursuant to s 21AN(2)(a) of the Evidence Act 1977 for an order that the complainant give further evidence at another preliminary hearing. 
57. [57]
    When ruling in favour of that application the judge observed:

“The material obtained [on subpoena] from the Department of Education contains documents stating that the complainant made a false complaint of another student smacking her on the bottom. This false allegation was made in the same month that she made a complaint to the police about the conduct she alleges the defendant committed against her – that is, October 2019. It is the proximate nature of the complaint about the classmate and to police, the similarity and the nature of the offending which, in the circumstances, have determined that it is an appropriate exercise of my discretion.

…

Further cross-examination of the complainant will be short and relate only to putting matters raised by the material subpoenaed from the Department of Education. It was submitted that the material obtained is capable of establishing that the complainant complained to her mother of a student bullying her and smacking her on the bottom. She later said that that did not happen. Further, it is capable of establishing that the complainant complained to her mother that the issue of bullying was a discussion between the entire class as well. This was untrue. The probative value of the evidence is further enhanced by the proximity of the complainant’s allegation to police in respect of the present offending.”

58. [58]
    The recording of the second pre-record was played to the jury at the trial.  The jury had transcripts with them as this occurred.
59. [59]
    The cross-examination addressed the topic which was the subject of the trial judge’s ruling.  A year and a half had passed since the first pre-record.  The complainant’s memory had deteriorated further. 
60. [60]
    An attempt was made to explore the extent to which the complainant had been absent from school during the period prior to her police interview.  She was unable to remember enough to answer the questions.  She accepted that it was probably right to say that at the time she was starting to fall behind in her schoolwork. 
61. [61]
    She thought it was right to suggest that shortly before she spoke to police she had told her mother about a boy at school, Mathias, who was bullying her.  But she could not remember telling her mother about it and could not remember whether she also told her mother that Mathias had also smacked her on the bottom.  She was asked about some other details of the bullying event but save that she remembered that her teacher had spoken to her class about Mathias bullying her, could not remember any other details.
62. [62]
    Cross-examining counsel suggested to her that it was not true that Mathias was bullying her.  She responded that he was wrong about that.  He suggested that she later told someone at school that it did not happen.  She responded he was wrong about that.  Counsel suggested that it was not true that Mathias smacked her and she agreed that Mathias had not smacked her.  She agreed that she told a teacher or a deputy principal that Mathias had not smacked her. 
63. [63]
    The upshot of her evidence was that she had told her mother that Mathias bullied her.  She could not remember whether she also told her mother that Mathias had also smacked her on the bottom.  She told someone at school that Mathias had not smacked her.  She recalled her teacher talking to the class about Mathias bullying her. 
64. [64]
    In re-examination she was asked directly whether or not Mathias had smacked her and she said she could not remember.

Evidence from the complainant’s mother

65. [65]
    The complainant’s mother explained the circumstances recorded at [18] above.
66. [66]
    She said that the interview between the complainant and the police took place because she took the complainant to the police station in response to things which the complainant had told her.
67. [67]
    On Saturday 26 October 2019, the complainant was at her house.  The complainant’s grandmother was also present.  The complainant “told me that she needed to tell me something” and then told her that “Daddy touched me there”.  With prompting the complainant then demonstrated by “wiping her vagina in a stroking motion.”  She said that the complainant referred to her vagina as a “wee”.
68. [68]
    She left the room briefly and returned and asked the complainant if there was anything else she needed to tell her.  The complainant said “Daddy sat on her, or she sat on Daddy.”  She then clarified that the complainant had said “both” these things occurred.  She thought she had asked the complainant where it happened and she said “on the couch” where he lives.  She said she couldn’t remember her disclosing anything else and that she didn’t really go into details.  She said that the complainant had told her that she was embarrassed to tell her mother.
69. [69]
    She acknowledged that there were further conversations on Sunday 27 October 2019 before she took the complainant to police on the Monday.  She recalled there were a couple of conversations about incidents but she could not remember details.
70. [70]
    She was cross-examined to little effect on the subject matter of the extent to which the complainant had not attended school during the period 2 February 2017 and 30 October 2019.  She agreed that the complainant was taken out of school for various reasons but could not recall enough to quantify the extent of it.  (Later a formal admission was made as between the parties that the complainant was absent for 144 days during that period.)  It was suggested that the topic had become a point of friction between her and the appellant but while she accepted that it might have been discussed between them she did not remember that it had become a point of friction.
71. [71]
    She was cross-examined about her relationship with the appellant in the period leading up to October 2019.  She accepted that at some time she was willing to work things out with the appellant and she remembered wanting to keep it out of court and be on good terms with him.  She had no recollection of ever saying she wanted to move back in together.  In response to the suggestion that she had made such a suggestion to the appellant and that he had told her he did not want to move back in together, she said that she did not recall that being said.  She said that she did not remember being upset by anything like that.  She rejected the suggestion that she had ever told the complainant that her father was a bad man and a bad daddy.  She denied suggesting to the complainant that the appellant had touched her.
72. [72]
    She was cross-examined on the subject matter of a boy “Mateus” having bullied the complainant at school.  She agreed that she had emailed the school “The boy Mateus who’s bullying [the complainant] has also smacked her on the bottom. This has caused great distress to [the complainant], and she has expressed this.”  She accepted that the complainant would have said that to her, although she did not recall talking to the complainant on the topic.
73. [73]
    In re-examination counsel for the Crown clarified that during the conversations with the complainant which immediately preceded the police interview the mother did not ask the complainant whether the appellant had touched her, and the mother said “No.  I did not.  She told me on her own.”
74. [74]
    I observe that the cross-examination did not appear to affect adversely on the reliability or credibility of the mother’s preliminary complaint evidence or elicit any particularly troubling inconsistencies with the complainant’s evidence.
75. [75]
    The bullying subject matter went nowhere because there was no evidence one way or the other about the truth of the underlying allegation.  The complainant had not recalled much on the subject matter; had accepted that she had told someone at school that the boy had not smacked her; but said she could not remember whether he had or had not smacked her.  Before this Court neither party suggested that the subject was important.
76. [76]
    The only real inconsistency between the mother’s recollection of the complaints made to her and the complainant’s evidence of the offending was that the mother’s recollection was that the complainant had said the offending occurred on the couch at the appellant’s house and the complainant’s evidence was that it had occurred on the appellant’s bed at the appellant’s house.  But such an inconsistency is not particularly troubling.
77. [77]
    Otherwise, there were minor inconsistencies between –

    1. the complainant’s acknowledgment that her mother had said that her father was a bad man, a bad daddy and the mother’s rejection of ever having said that; and
    2. the complainant’s acknowledgment her mother had asked her whether her father had touched her but which had occurred “a long, long time ago” and not at about the time her mother had told her he was not a good dad, and the mother’s other rejection that any such question occurred at the time of the disclosures,

but those inconsistencies did not seem to me to diminish significantly the consistent evidence of the complainant, the mother and (as will shortly appear) the grandmother which had conveyed the proposition that the disclosures had come from the complainant and had not been suggested to her by the mother.

Evidence from the complainant’s maternal grandmother

78. [78]
    The maternal grandmother was called and her attention drawn to 26 October 2019.
79. [79]
    She said that the complainant was lying on the bed, and she said, “Mummy, Daddy touched me here.”  Her mother went over to her and said, “[complainant’s name], where did Daddy touch you?”  And asked the complainant to show her how.  The complainant then “used her hand in between her two legs, over her genitals in a backwards and forwards motion”.  The mother asked where it happened and she replied “in bed”.  Her mother left the room and she herself then asked the complainant if it was under or over her clothes and she had said it was “over”.
80. [80]
    According to her the complainant made further disclosures to both of them the next evening.  The complainant had said, “Mummy, there’s more.”  She was “stopping and starting” and went “backwards and forwards” but “she eventually said, ‘I took off my pants and sat on Daddy’ or ‘took down my pants and sat on Daddy, and he took down his pants and he sat on me.’”  The complainant had said that it happened on the couch.
81. [81]
    I observe that there were only minor inconsistencies between the grandmother’s recollection of the complaints made in her presence and the complainant’s evidence of the offending.  Again, like the mother, the grandmother recalled the couch being mentioned as one location where the offending occurred, although the grandmother recalled that the bed was also mentioned.  And, as mentioned, the grandmother’s evidence was inconsistent with the content of the disclosures having been suggested by the mother to the complainant.

The appellant’s record of interview

82. [82]
    The record of interview between the appellant and police took place on 5 February 2020.  It was played to the jury.
83. [83]
    The appellant rejected any suggestion of sexual touching of the complainant.  He suggested that he was stunned at the allegations and that the source of it must be the mother, who did not want him seeing the child.  He described his relationship with the mother as involving a lot of arguing and fighting.
84. [84]
    The police then explained the content of the disclosures which had been made by the complainant herself.  Again, his response was that the mother must have put that in the complainant’s head.  The police interviewer observed that the disclosure that the complainant had made the allegations obviously seemed to surprise the appellant.  The appellant told police that none of what had been suggested was true.  He would never touch a child.

The closing addresses and summing up

85. [85]
    Counsel for the Crown properly suggested that the case primarily rested on the evidence of the complainant and whether the jury accepted her evidence as honest and reliable. 
86. [86]
    On the question of such inconsistencies as counsel for the appellant might draw to the jury’s attention, counsel for the Crown suggested:

“Now, my friend … may try to suggest the devil’s in the details. And on occasions, that may be appropriate, but you are allowed to and, in fact, my submission is that you should make allowances for this type of human aspect: does the fact that a complainant cannot specifically recall certain matters really go towards the heart of the facts; would you expect someone to recall such details if the allegations of sexual abuse were, in fact, true; does any failure to recall specific details demonstrate a willingness to be untruthful, a liar or unreliable.”

87. [87]
    Amongst other things, counsel for the Crown suggested that the jury had to consider that the complainant was a young child when the offences occurred and that the jury might think it was natural for her not to have a perfect recollection of everything.  He suggested they did not need to find that she did.  He suggested that the evidence itself painted the picture that the complainant was really reluctant to speak about the offending and that the jury should recall from the recording of the police interview, “the pauses that she made and how affected she seemed when she was being asked to speak about the abuse.”
88. [88]
    And again, on the subject of inconsistencies, counsel invited the jury to consider whether a suggested inconsistency was truly inconsistent or whether there might be some explanation on the evidence.  He drew to the jury’s attention that an explanation might be that the questions or the answers were vague or unclear.  If the jury having considered that issue did form the view that there was an inconsistency he invited them to ask themselves whether it went to the heart of the matter, or whether it could be explained or accepted in the circumstances of the case including the young age of the complainant.
89. [89]
    Counsel then went through the evidence with the jury, relating it to the counts alleged against the appellant and addressing specific inconsistencies which might be identified.
90. [90]
    As might be expected, counsel for the appellant focussed on the suggested inconsistencies and impossibilities in the complainant’s evidence and the disparity between that version of events and that relayed by the appellant to police.  The principal submissions made by counsel for the appellant were:

    1. There was a hostile family dynamic between the complainant’s mother and the appellant.  He suggested that the complainant had accepted that her mother had said something along the lines of that her father was a bad daddy.  He suggested that, in doing so, the mother may have planted the allegations in the mind of the complainant.
    2. The preliminary complaint disclosures on 26 October 2029 differed in a material respect in that there was no reasonable explanation for a difference between the allegations having occurred on the couch as compared to on the bed.
    3. The complainant had failed to remain consistent within her evidence.  Her allegations had evolved over time such that it was impossible to know precisely what she was alleging actually happened.  Specifically, counsel pointed to the following:
       1. (i)
          that when she first described what occurred in the police interview, count 5 was recounted as part of the same incident as counts 1, 2 and 3, but this later changed to a separate occasion;
       1. (ii)
          that she seemed to adopt the police interviewer’s suggestion that it hurt when he touched her, but later said that she did not remember saying that;
       1. (iii)
          that on three separate occasions she said that the touching occurred over and under her clothes; but she later said that it was over her undies; and
       1. (iv)
          that while she initially said that the touching constituting count 4 occurred “before and after” counts 1 and 2, she later said that it was at another time.
    4. The complainant’s credibility was undermined by the things that were happening at school and the “apparent lie” that she told in that context about Mathias smacking her on the bottom.
    5. The evidence of what the appellant told the police in the formal interview should be accepted.
91. [91]
    Counsel for the appellant ultimately submitted to the jury that they should be satisfied that no offending happened at all, or at the very least, the appellant’s account would cause them to have a doubt about the evidence of the complainant.  He submitted that the quality of the evidence given by the complainant was such that the jury could not find her evidence about the allegations as credible or reliable.
92. [92]
    The trial judge summed up to the jury in an orthodox way consistent with submissions which had been made to him.  No complaint has been advanced to this Court in relation to the directions which his Honour gave. 

Consideration of the ground of appeal

93. [93]
    The principles by which this ground of appeal are to be assessed are not in doubt.  It was common ground that the leading High Court cases were sufficiently summarised for present purposes in R v Thrupp; R v Taiao; R v Walker; R v Daniels.^[3]
94. [94]
    The appellant contends that this Court should find the appeal ground established because, making its own assessment of the sufficiency and quality of the evidence, this Court should form the view that the complainant’s evidence was of such poor quality that it was not open for the jury to have been satisfied of the appellant’s guilt beyond reasonable doubt.
95. [95]
    I am not persuaded to form that view. 
96. [96]
    As already mentioned, the complainant’s evidence in the 93A statement, if accepted, was capable of proving the case.  Plainly the jury did accept that evidence.  I do not regard it to be surprising that two years later (which was about a quarter of the complainant’s lifespan later) the complainant’s recollection had become poor.  To my mind too much is made of the alleged “reneging” by the complainant in respect of counts 2 and 5 of the appellant’s guilt and the answers in re-examination.  The answers on which the appellant relies for that proposition strike me as likely explicable by a combination of the complainant’s diminished recollection and confusion introduced by the way the questioner framed the questions.  But any doubt which I might have consequent upon those answers is explicable by the advantages which the jury has over a court which proceeds solely by reference to the record.  The jury was entitled to be persuaded simply by accepting the s 93A evidence and not to be troubled by such inroads as might apparently have been made two years later.  They were entitled to regard the effect of the inroads as more apparent than real for reasons I have already articulated.
97. [97]
    Especially is this so given the fact that the preliminary complaint evidence was, as the respondent submitted, largely consistent with the evidence of the complainant so far as it went.  That there were minor explicit inconsistencies and that the disclosures were not as explicit as those ultimately elicited by the police in the interview is not something which would compel the conclusion that the jury ought to have had a reasonable doubt concerning the complainant’s evidence. 
98. [98]
    For completeness, I record that the question whether this Court should itself view the recordings of the complainant rather than proceed by reference to the transcripts was addressed during oral argument.  Neither party suggested that the Court should do so, and counsel for the respondent submitted that doing so would be to trespass into the jury’s role and would be inconsistent with the High Court’s instruction in Pell v The Queen.^[4]  I have considered the subsequent discussion of this topic in R v ZT^[5] and formed the view that I could identify the existence, nature and scope of the jury’s advantage in seeing and hearing the witnesses without viewing the recordings and have not done so.
99. [99]
    I accept the respondent’s submissions that notwithstanding any inconsistencies in the evidence of the complainant the jury were entitled to accept it and upon the entire consideration of the case, the jury was entitled to conclude that guilt on all counts had been proved beyond reasonable doubt.  The jury were entitled to reach that conclusion in spite of the appellant’s denials in his record of interview.
100. [100]
     The appellant has not made out his ground of appeal.

Conclusion

101. [101]
     The appeal should be dismissed.
102. [102]
     FLANAGAN JA:  I agree with Bond JA.  Having made my own independent assessment of the whole of the evidence, I agree that the jury was entitled to conclude that guilt on all counts had been proved beyond reasonable doubt.
103. [103]
     BROWN JA:  I agree with Bond JA.  Having made my own independent assessment of the whole of the evidence, I agree that the jury was entitled to conclude that guilt on all five counts had been proven beyond reasonable doubt.