R v PBT[2025] QCA 152

SUPREME COURT OF QUEENSLAND

1. [1]
   BOWSKILL CJ:  On 1 August 2025, following a hearing on 30 July 2025 in which this Court heard argument on the three appeal grounds identified by Boddice JA at [28] below, this Court ordered that the appellant’s appeal against his conviction of three counts of indecent treatment of a child be allowed, the verdicts of guilty be set aside and verdicts of acquittal entered instead.  These are my reasons for joining in those orders.
2. [2]
   The circumstances of this case are concerning in a number of respects.  The complainant is the appellant’s stepdaughter.  Her mother married the appellant when the complainant was aged about six, and the appellant started living with the complainant and her mother when the complainant was aged about eight.  The relationship between the complainant and the appellant was not good; he was strict, she did not like him and did not want him to live with her and her mother.  The complainant made allegations, to her mother, of serious sexual abuse by the appellant, including multiple occasions of digital rape.  The complainant repeated the allegations to the police officers who interviewed her on 4 March 2020.  The complainant subsequently completely recanted the allegations, saying that she had lied because, in effect, she wanted to get rid of the appellant.
3. [3]
   But the appellant had already been interviewed by the police, on 5 March 2020, by reference to the serious allegations which had been made, and the interview was recorded.  English is the appellant’s third language, and he did not speak it well.  He arrived in Australia in 2015 as a refugee, from the Congo.  His cultural background, and prior life experience, were such that he was fearful of police authority.  He had no interpreter for the police interview.  His answers to questions were ambiguous, and could be taken as admissions to inappropriately touching the complainant on her breast or on her bottom.
4. [4]
   Those answers comprised the only evidence at the trial relied upon by the Crown to support the three charges of indecent treatment.  The complainant’s evidence – both of her false accusations, and her withdrawal of them – was placed before the jury, in the unsatisfactory circumstances described by Boddice JA at [96]-[100] below.  But it was not relied upon by the Crown to support the charges.  The confusion for a jury evident in such an approach is obvious.  It can only have been compounded by the trial judge, at the urging of both parties, giving a direction under s 103ZY of the Evidence Act 1977 (Qld), which is to explain to a jury that there may be complex reasons why there are differences in the accounts given by a complainant on different occasions.
5. [5]
   Before answering the questions put to him by the police in the interview, the appellant was not cautioned by the police officers in the manner required by s 431 of the Police Powers and Responsibilities Act 2000 (Qld), which provides:

“431 Cautioning of persons

1. A police officer must, before a relevant person is questioned, caution the person in the way required under the responsibilities code.^[1]

2. The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person can not hear adequately.

3. If the police officer reasonably suspects the person does not understand the caution, the officer may ask the person to explain the meaning of the caution in the person’s own words.

4. If necessary, the police officer must further explain the caution.

5. This section does not apply if another Act requires the person to answer questions put by, or do things required by, the police officer.”

6. [6]
   The relevant caution is about the right to silence.  Section 26(1) of the Police Responsibilities Code 2012 (Qld) provides that a police officer must caution a relevant person about the person’s right to silence in a way substantially complying with the following:

“Before I ask you any questions I must tell you that you have the right to remain silent.

This means you do not have to say anything, answer any question or make any statement unless you wish to do so.

However, if you do say something or make a statement, it may later be used as evidence.

Do you understand?”

7. [7]
   Section 26(2) provides that if the police officer reasonably suspects the person does not understand the caution, the police officer may ask the person to explain the meaning of the caution in the person’s own words.
8. [8]
   The police officer interviewing the appellant on 5 March 2020 administered the caution about the right to silence using the words of s 26(1).  The officer evidently, and understandably in the circumstances, formed the belief that the appellant may not have understood the caution, as he asked the appellant if he could explain what the warning means.
9. [9]
   As Boddice JA has noted, at [43] below, the response given by the appellant was acknowledged by the officer as “gobbledygook” – the appellant clearly did not understand what the caution meant.  The appellant’s understanding of the caution was, in effect, that he had to stay quiet, and not do anything, while the police officer was talking; but he had to listen and then answer when the time came.
10. [10]
    After the appellant gave this answer, which made it patently clear he did not understand, the officer went on to say:

“[OFFICER]:  Not quite.  It means that you don’t have to answer my questions.

[APPELLANT]:  Okay.

[OFFICER]:  If ah, if I a-, you have the right to remain silent.  So, you don’t, you are not getting into any trouble if you don’t talk to me.

[APPELLANT]:  Okay.

[OFFICER]:  Um, you know, [indistinct] any further, any, when it comes to answering my questions, if you choose not to that’s okay.

[APPELLANT]:  Okay.

[OFFICER]:  Alright?

[APPELLANT]:  Yeah.”^[2]

11. [11]
    There are three fundamental problems with what the police officer said.  First, his response, “not quite”, conveys that the appellant was only a little wrong – not completely wrong in his understanding.  Second, he did not repeat the caution in the terms of s 26(1), or further explain it, but rather purported to say what the caution “means”.  Third, and most significantly, the officer completely omitted the last part of the caution – that if the appellant did choose to answer questions, or make any statement, it may later be used as evidence against him.
12. [12]
    There is a fourth problem with what the police officer did, or did not do, which was the failure to arrange an interpreter for the appellant,^[3] although the failure to do this was not part of the appellant’s argument on the appeal.
13. [13]
    An application was made, under s 590AA of the Criminal Code, for the evidence contained in the appellant’s record of interview to be excluded on the grounds of involuntariness.  The pre-trial hearing judge dismissed that application, on the basis that the officer had done all that was required to explain the caution more simply,^[4] after the appellant’s answer indicating he did not understand; and on the basis of an adverse credibility finding against the appellant.^[5]  The judge did not accept the appellant’s evidence that he had not understood the caution.
14. [14]
    The pre-trial hearing judge’s finding that the officer had sufficiently re-explained the caution was wrong.  An important part of the caution was not readministered to the appellant, after he responded in a way the officer accepted demonstrated he did not understand the caution.  The adverse credit finding made by the pre-trial hearing judge has no impact on this conclusion.  A person cannot comprehend something that they have not been told, and there was no other evidence which supported the conclusion that the appellant had the necessary understanding despite not having been told of it by the officer.
15. [15]
    The record of the appellant’s police interview ought to have been excluded either on the basis that the statements made by the appellant during the interview were not voluntary, that is, made in the exercise of a free choice to speak or be silent, with an understanding that his statements could be used as evidence against him;^[6] or, if voluntary in a broad sense,^[7] because it would be unfair to the appellant to admit the evidence in the trial.^[8]  The interview proceeded in breach of relevant provisions of the Police Powers and Responsibilities Act and the Responsibilities Code which are designed, among other things, to ensure the free exercise of the right of an accused person to stay silent.^[9]  It was unfair to permit the Crown to lead evidence of the statements the appellant made to the police in circumstances where he did not have the benefit of all aspects of his right to silence being explained to him, let alone the assistance of an interpreter to ensure he understood that right fully.  The pre-trial hearing judge erred in failing to exclude the record of interview.
16. [16]
    The respondent did not argue with any force against this conclusion, pointing only to the facts that:

    1. the appellant did not say, when he gave evidence, that he was unaware his answers could be used in evidence; and
    2. at the end of the police interview, the appellant answered the officer’s question “are you happy with the way that [we] have treated you today?” by saying “Yes, I’m happy [with] whatever decision you are going to take I’m going to confirm to that decision”.
17. [17]
    As to the former, I reiterate that a person cannot be assumed to comprehend something they have not been told.  As to the latter, the appellant’s answer only serves to underscore the inherent unfairness of the entire interview, in terms of the appellant’s understanding.
18. [18]
    The pre-trial decision not to exclude the appellant’s record of interview involved a wrong decision on a question of law, for the purposes of s 668E(1) of the Criminal Code.^[10]  That error was material because it plainly affected the reasoning of the jury to the verdicts of guilty,^[11] as it allowed the admission of the only evidence the Crown relied upon in support of the charges at the trial.  Accordingly, it is appropriate for this Court to allow the appeal.
19. [19]
    The respondent conceded that if this was the conclusion reached by the Court, it was also appropriate to quash the convictions and direct verdicts of acquittal be entered, rather than ordering a retrial.  That is because, given the way the Crown conducted the case, there would then be no evidence against the appellant.
20. [20]
    This addresses ground 1(a) of the appeal.
21. [21]
    Given the respondent’s concession just referred to, and the absence of any real argument against the conclusion reached, it is not necessary to address the remaining grounds relied on by the appellant.  Nevertheless, I agree with the reasons given by Boddice JA in [87]-[92] in relation to ground 1(b) (the failure to comply with s 22 of the Police Responsibilities Code) and also with his Honour’s observation in [96]-[100] about the conduct of the prosecutor at the trial.
22. [22]
    I would also observe that, in the circumstances of this case the direction under s 103ZY of the Evidence Act was not required and should not have been given.  The section did not apply.  There was no suggestion that the differences in the complainant’s account may be relevant to her truthfulness or reliability (the precondition to s 103ZY applying).  The Crown did not rely on the complainant’s evidence to support the charges.  In one breath, the jury were told the complainant’s evidence “can in no way be used to support the Crown case”, and then were told, in the words of s 103ZY(2), that experience shows trauma may affect how a person recalls things, and that both truthful and untruthful accounts of a sexual offence may contain differences.  There is a real risk, in my view, that a jury could have been left thinking that perhaps the complainant’s withdrawal of her allegations was not truthful, and that in fact the serious abuse she had earlier described was true.  But that was not the Crown’s case.
23. [23]
    The appeal has been allowed on the basis of ground 1, the improper admission of the appellant’s record of interview into evidence.  I make these observations about the direction under s 103ZY only to draw attention to the need for both parties, and trial judges, to carefully consider whether a direction is in fact called for in the circumstances of the particular case; and, in the case of a direction required by statute, to carefully consider the legislative criteria for application of the section.
24. [24]
    BOND JA:  For the reasons given by the Chief Justice, I joined in the making of the orders on 1 August 2025.

25. [25]
    BODDICE JA:  On 4 November 2024, a jury found the appellant guilty of three counts of indecent treatment of a child under 16, under 12, under care.  Each was a domestic violence offence.
26. [26]
    On the same date, the appellant was sentenced to imprisonment for 10 months, suspended after serving five months, for an operational period of 18 months.
27. [27]
    The appellant appealed his conviction and sought leave to appeal sentence.
28. [28]
    In respect of conviction, the appellant relied on three grounds.  First, that the judge presiding over a pre-trial application, erred in refusing to exclude the appellant’s record of interview by (a) determining that the appellant understood the right to silence and/or (b) failing to have regard to the non-compliance by police with r 22(2) of the Police Responsibilities Code concerning mandatory cautions for persons to attend for questioning.  Second, that the trial judge erred in refusing to exclude the appellant’s record of interview upon leave being granted to re-open the earlier ruling.  Third, that the trial miscarried from cumulative errors, that in combination, produced an unfair trial in any one or more of the following:

    1. the trial judge erred in allowing the entirety of the complainant’s evidence to be played before the jury, after ruling that it was inadmissible save for how the complaint was made and the recantations of her complaints;
    2. the trial judge erred in cautioning the jury against misuse of the complainant’s evidence;
    3. the trial judge erred in leaving before the jury, evidence referring to “teen” pornography and once left, failing to properly direct the jury as to its use;
    4. the trial judge erred in providing a direction pursuant to s 103ZY of the Evidence Act 1977 (Qld) (Evidence Act); and
    5. the trial judge erred in failing to refer to the content of the appellant’s evidence when directing the jury as to accident and/or if the appellant was improperly questioned on matters in his evidence from the pre-trial application, such that it was unfair and occasioned a miscarriage of justice.
29. [29]
    Should leave be granted to appeal sentence, the appellant relied on one ground namely, that the sentence imposed was manifestly excessive in all the circumstances.
30. [30]
    On 1 August 2025, this Court ordered:

1. Appeal against conviction allowed.
2. Verdicts of guilty on each count be set aside.
3. Verdicts of acquittal entered on each count.
4. Reasons to follow.

These are my reasons for joining in the making of those orders.

Complaint history

31. [31]
    In late February 2020, the complainant told her mother that the appellant had sexually assaulted her.
32. [32]
    On 4 March 2020, police recorded an interview with the complainant.  Later that same day, a police officer attended the appellant’s residence.  The police officer requested that the appellant attend the police station, which the appellant did, the following day.
33. [33]
    On 5 March 2020, police conducted an electronically recorded interview with the appellant.  Although police were aware that English was not the appellant’s first or second language, that interview was conducted without an interpreter being present.
34. [34]
    The appellant was charged with the offences, shortly after that interview.

Indictment

35. [35]
    The indictment presented on 25 June 2021 contained five counts.  Each related to events said to have taken place between the appellant and the complainant, whilst he lived with the complainant and her mother between 2015 and 2018.  During that period, the complainant was aged between eight and 12 years.
36. [36]
    Count 1 alleged that between 1 November 2015 and 6 September 2018, the appellant had maintained an unlawful sexual relationship with a child under 16 years.  Counts 2, 3, 4 and 5 alleged that the appellant had unlawfully and indecently dealt with the same child, when that child was under 12 years of age and under the appellant’s care.
37. [37]
    The trial of the counts on that indictment commenced on 28 October 2024.  On day two the jury was discharged.  After discharge, the prosecution entered a nolle prosequi in respect of the count of maintaining a relationship with a child under 16 years and the first count of indecent treatment of a child under 16, under 12, under care.
38. [38]
    The trial of the remaining counts commenced on 31 October 2024.  The first of the remaining counts was particularised as between 1 January 2017 and 6 September 2018, the appellant touching the complainant’s breast, on a morning before school.  The second was particularised as between 1 January 2017 and 6 September 2018, the appellant touching the complainant’s breasts, whilst she was wearing a towel.  The last was particularised as touching the complainant’s bottom, on the same day as the second count.
39. [39]
    The jury returned verdicts of guilty on the third day of that trial.

Pre-trial ruling

40. [40]
    Prior to the commencement of the trial, the appellant made an application for a ruling that his record of interview on 5 March 2020, was inadmissible or alternatively, was to be excluded from evidence in the proceeding.
41. [41]
    The basis for the application was that the prosecution could not establish that the statements made by the appellant in the interview were voluntary, or alternatively, that the interview ought to be excluded in the exercise of the court’s discretion.  The appellant contended that police did not explain to him his right to silence as required by s 431 of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA), such that he did not understand that he had a free choice to speak or be silent.
42. [42]
    At the hearing of the application, evidence was given by the police officer.  Relevantly, the police officer accepted that he had attended the appellant’s residence on 4 March 2020 and advised him that he wished to speak to him in respect of a matter.  He did not tell the appellant the precise matter.  When asked to do the best he could to recall the conversation he had with the appellant at his home, the police officer replied, “At his dwelling, introduced myself, advised him I wished to speak to him with regards to a matter.  I didn’t tell him the exact matter that I wanted to speak about.”^[12]  In cross-examination, when asked what he actually said to the appellant, the police officer said, “I wish to speak to you at the [local] Police Station” or words to that effect.  The police officer confirmed that at the time he believed that English was the appellant’s third language.
43. [43]
    The police officer accepted that when the appellant attended the police station on the following day, the police officer had concerns that the appellant did not understand the caution he gave at the commencement of the record of interview.  The appellant, when asked to explain what the caution meant, had replied, “the warning says that if you are talking to me, I’m not supposed to answer until you say, ‘you can ask the question,’ or I’m not supposed to do anything, and I need to listen to the question, then the timing come.”^[13]  The police officer accepted that answer was “gobbledygook” and that he had replied, “Not quite … It means you don’t have to answer any questions … you have the right to remain silent so you don’t — you are not getting into any trouble if you don’t talk to me … when it comes to answering my questions if you choose not to, that’s okay.”^[14]
44. [44]
    The appellant also gave evidence on the application.  The appellant said he was born in the Democratic Republic of the Congo, where he spoke Swahili and French.  At home they never spoke English.  He learned some English in secondary school.  He left the Democratic Republic of the Congo in 2013, because his life was in danger from the police, the militia and the Mai-Mai.  The Congolese Police asked people for bribes.  If you did not give them money, your life was in danger.  He knew of people who had been shot, although it was not proved it was the Congolese Police.
45. [45]
    The appellant said he travelled to Australia as a refugee.  Whilst in the refugee camp, he did not have English classes.  He has not had English classes since living in Australia.  He was able to read a little bit of the newspaper, although writing was difficult.
46. [46]
    The appellant said that when police came to his house, he was not told that he did not have to go to the police station.  The police officer showed him a card and said, “You have to go the police station.”  He was given an address.  The appellant said he did not understand that he did not have to answer the police’s questions if he did not want to do so.  The appellant said he understood that while the police officer asked the questions, he had to remain silent and then answer the question.
47. [47]
    The appellant further said, in relation to this caution given by police, “Before I ask you any questions, I must tell you that you have the right to remain silent.  This means that you do not have to say anything, or answer any questions, or make any statements, unless you wish to do so.  However, if you do say something, or make any statement, it may later be used as evidence.  Do you understand that warning?”,^[15] he now understood the warning, but when the police officer told him, he did not understand.  He thought police were all the same and that he had no choice but to answer their questions.  Had he known he did not have to answer the questions, he would not have partaken in the interview.
48. [48]
    In cross-examination, the appellant accepted that he did not ask the police officer for an interpreter.  The appellant only told the police officer to speak slowly.  He agreed that he had told police he did not want to call a lawyer, but said that if he knew he had the right to one, he would have accepted it.  The appellant said that when police came to his home, they were armed and it reminded him of things that had happened in the Congo.  The appellant accepted that he had told police that he had understood everything that had been said to him that day.  The appellant said he was scared and not feeling himself at that time.
49. [49]
    In refusing the appellant’s application, the pre-trial judge accepted that English was the appellant’s third language, after Swahili and French, but found that the appellant was fluent in the English language.  Further, apart from an error in explaining correctly the caution concerning the right to remain silent, the appellant’s responses to police were quick and appropriate.  Whilst the police officer had accepted that he could have arranged for an interpreter for the interview, the pre-trial judge found that there was no reason to do so.  The police officer was having a good conversation with the appellant and was of the opinion that he understood what he was saying.
50. [50]
    As to the caution concerning the appellant’s right to silence, the pre-trial judge said:

“The officer accepted the proposition of counsel for [the appellant] that [the appellant’s] effort to explain the caution concerning the right to silence was ‘gobbledygook’.  The caution itself deals with a number of concepts, including the right to remain silent, the choice whether to remain silent or to answer questions, and the concept that if anything is said or any statement made it may be later be used as evidence.  Obviously, [the appellant] misunderstood the caution, which was why the interviewing officer broke it down into simple statements.  As the officer agreed in his evidence, in hindsight it would have been much better if he had asked [the appellant] again if he understood the caution.  However the officer could not have made the caution any simpler than he did.  On three separate occasions he told [the appellant] that he did not have to answer any questions, that he would not get into any trouble if he didn't talk to the officer, and it would be ‘okay’ if he chose not to answer questions.  In response to each simple statement [the appellant] said okay, and nodded at his head.”^[16]

51. [51]
    The pre-trial judge did not accept the appellant’s evidence that he did not understand the right to silence and was satisfied that on the balance of probabilities, the statements made by the appellant in the course of the interview were made voluntarily.  Further, there was no unfairness in the way that police interviewed the appellant and no breach of the requirements of the PPRA which would lead to an exclusion of the interview on public policy grounds.

Trial

52. [52]
    Prior to the jury being empanelled, application was made by defence counsel, to exclude the complainant’s evidence, in full.  That application was made in circumstances where the child complainant had recanted, on oath, all of the allegations she had made of sexual misconduct by the appellant.
53. [53]
    The trial judge ruled that the evidence of the child complainant was not to be admitted in the trial, on the ground that it was irrelevant, save for how the complaint arose and the appellant came to be interviewed by police.
54. [54]
    This ruling was not the subject of detailed reasons.  Its effect was not agreed by the defence and prosecution.  As a consequence, the following exchange took place before the trial judge, on the next day, before the empanelment of the jury:

“[DEFENCE COUNSEL]:  Okay.  Your Honour, it’s in relation to my application yesterday, specifically the application to – my application, as per – it was on the outline and certainly on the application itself – was to exclude the complainant’s evidence, save for how the complaint arose and how it came to be protracted.

HIS HONOUR:  Yes.  All right.

[DEFENCE COUNSEL]:  I understood your Honour’s order yesterday afternoon to mirror what I was asking for, and that’s why your Honour was suggesting that the parties work on admissions in relation to that.  That’s my comprehension of your Honour’s order.  My learned friend had a different comprehension.

HIS HONOUR:  All right.  Mr [prosecutor].

[PROSECUTOR]:  Your Honour’s order, as I recall it, was just that the evidence of the complainant was irrelevant and excluded.

HIS HONOUR:  Yes.  But I was hopeful that – I mean, how are you going to introduce the complainant in any event.

[PROSECUTOR]:  From his interview.

HIS HONOUR:  So who are you calling?

[PROSECUTOR]:  I’m just tendering the interview by admission.

[DEFENCE COUNSEL]: Your Honour, I – sorry.  I didn’t mean to speak over Mr [prosecutor].

[PROSECUTOR]:  Yes.

HIS HONOUR:  Yes, [defence counsel].

[DEFENCE COUNSEL]:  Your Honour, that would cause an irreparable prejudice to the defendant.  The entire - - -

HIS HONOUR:  Why?

[DEFENCE COUNSEL]:  Your Honour, the defence case is on two planks.  The first is that there are reasons to doubt the interview’s reliability on the basis of any explanations that the defendant may be able to give.  The second is that the complainant’s retraction or recantation feeds that doubt.  And if the jury aren’t or do not hear in any way details of that recantation, then he’s robbed of that opportunity, and that’s why the application was brought.  So that’s why I’m inquiring as to the nature of your Honour’s order.  As I understood it - - -

HIS HONOUR:  Well - - -

[DEFENCE COUNSEL]:  It was as per - - -

HIS HONOUR:  Let’s – I’ll just have a look at your application again.

[DEFENCE COUNSEL]:  Thank you, your Honour.

HIS HONOUR:  Well, the application was premised that the record of interview of the defendant dated – be excluded.  Sorry.

[DEFENCE COUNSEL]:  Number 4 - - -

HIS HONOUR:  That’s to do - - -

[DEFENCE COUNSEL]:  - - - it is, your Honour.

HIS HONOUR:  - - - with the record of interview.

[DEFENCE COUNSEL]:  Yes.  And your Honour might - - -

HIS HONOUR:  Yes.  I order it – well, that’s – it’s in accordance with the application - - -

[DEFENCE COUNSEL]:  And the reason I was confident, your Honour - - -

HIS HONOUR:  - - - if you wanted clarification about that.

[DEFENCE COUNSEL]:  Thank you, your Honour.  Your Honour spoke to us about admissions.  Attempts were made to agree those admissions, and those attempts unfortunately were unsuccessful.  In those circumstances, I’m left between a rock and a hard place.  I need the jury to know about the two matters that are [indistinct] and if it can’t be done by admissions, then my application to you is that the 590AA be reopened and it be allowed that the complainant’s evidence be played in full to the jury today and directions be given as to its use.

HIS HONOUR:  Mr [prosecutor], can’t admissions be given - - -

[PROSECUTOR]:  No - - -

HIS HONOUR:  - - - really?

[PROSECUTOR]:  I – I’m not trying to be difficult, but before the application was made, I put defence on notice that I could not make admissions as to the content of the complainant’s evidence.  And that position didn’t change.

HIS HONOUR:  So, [defence counsel], what’s your application then?

[DEFENCE COUNSEL]:  My application is, in light of the inability to agree admissions, that the jury would not be hearing relevant evidence.  The only way for them to hear that relevant evidence, in my submission, is to apply to reopen the 590AA hearing, the special reasons being that your Honour’s order can’t have proper effect without them hearing this evidence, and then that evidence be played in full today and that the jury be directed in response – in relation to that evidence that they can’t use it for any other purpose other than those largely identified by your Honour.

HIS HONOUR:  Do you want to say anything?

[PROSECUTOR]:  Well, the application needs to identify special reasons for the reopening of - - -

HIS HONOUR: I’m satisfied that there are special reasons, particularly in the circumstance where the prosecution are unable to make admissions about this.

[PROSECUTOR]:  Yes.  And then it’s a question - - -

HIS HONOUR:  And let’s sit through two hours of footage for no reason whatsoever.

[PROSECUTOR]:  Yes.  I – to be clear, your Honour, I – before the application was made, I advised my friend in writing that I had taken advice and I could not make admissions as to the content of the complainant’s evidence.  I’m willing to proceed this morning just on the basis that the – her evidence isn’t played and I tender the interview.  But if my friend’s making an application to reopen the 590 and have the complainant’s evidence admissible, then there should be a determination on the basis on which that evidence is admissible.  And then if that’s the case then I will play all of the evidence.

HIS HONOUR:  This is getting overly complicated.

[PROSECUTOR]:  I am aware, your Honour.  Yes.

HIS HONOUR:  I’m happy to go with whatever defence want.

[PROSECUTOR]:  So I’m ready to proceed, then, and I will - - -

HIS HONOUR:  Right.

[PROSECUTOR]:  - - - have to play the evidence.”^[17]

55. [55]
    Following empanelment of the jury and opening statements, the prosecution called the complainant’s mother.  She gave evidence that the complainant was her only child.  After she divorced her daughter’s father, she married the appellant, who she had known when she was living in the Democratic Republic of the Congo.  They had lost contact after she left that country.  She reached out to the appellant again in 2010, or 2011.  They married in 2013, in Uganda.  When the appellant first came to Australia in 2015, he lived with them in their unit.  They subsequently had two children together.
56. [56]
    The complainant’s mother said that after the appellant moved in, he started working at a bakery, before being employed in a meat factory.  His usual shifts were night shifts.  She worked in childcare, during the day hours.  The appellant would look after the children, including the complainant, when she was not at school.
57. [57]
    The complainant’s mother said that the appellant spoke Swahili and French and a little bit of English.  His English had become a little better since living in Australia.  She no longer lived with the appellant, who moved out in 2020.  When the appellant was living with them, the complainant and the appellant did not get along very well.  The appellant did not like the complainant and the complainant was not comfortable, having lived only with her mother for some years.
58. [58]
    The complainant’s mother said on 25 February 2020, when she came home from work, the appellant said that he had passed the complainant’s room and the complainant was watching something bad on the iPad.  He told her to stop.  The appellant said the complainant would come and tell her stories.  Later that day, when picking the complainant up from school, she asked the complainant what had happened.  The complainant said, “Oh, papa was coming to my room to touch me, but I say to him, ‘Stop.  If you touch me, I’m going to tell on you.’”^[18]
59. [59]
    The complainant’s mother said that when she returned home, she spoke to the appellant, telling him the complainant said he was going to her room to touch her.  The appellant said, “no” the complainant had been watching something bad on her iPad and he had told her she needed to stop.
60. [60]
    The complainant’s mother said on the following day, her family came over to the house.  There was a fight over the amount of money the appellant was sending to Africa.  The complainant’s mother said that on the day after the fight over money, she took the complainant to the police station.  She did so because the complainant had told her that the appellant went into her room and wanted to touch her.
61. [61]
    The complainant’s mother said on another occasion, in 2018, the complainant had told her that the appellant had told her to go back in the shower.  The complainant would not speak when she was asked what she meant.  The complainant’s mother described the complainant as always upset.  The complainant did not like the appellant and the appellant did not like her.  The appellant would sometimes tell the complainant that she had been watching TV for too long and to switch the TV off.  He would also tell her to do chores.  She would ask the appellant to be nice to the complainant.  He replied, “She’s a girl.  She needs to learn how to do work.”^[19]
62. [62]
    In cross-examination, the complainant’s mother accepted that the appellant was a strict parent who had rules.  The complainant’s mother agreed that when she spoke to the complainant in February 2020, the complainant complained that the appellant had confronted her about watching something bad on the iPad.  The complainant’s mother also agreed that on the day after they went to the police station, the complainant told her that the appellant had never put his finger in her vagina and that any touching by the appellant was accidental and only occurred when they were playing together.  The complainant said she did not like the touching.  This disclosure came as a shock.  She asked the complainant whether she was sure, because she did not want the complainant to change her story just to make the mother happy.  The complainant replied she was sure.
63. [63]
    The complainant’s mother took the complainant back to the police station, on 13 March 2020.  The complainant told the police officer she had lied about fingers going into her vagina and said that all the touching had been accidental.  The police officer accused the complainant’s mother of scaring the complainant and having her change her story.  The complainant’s mother had replied, “No, I didn’t tell her to change or anything.  That’s why I bring her, so you can ask her again.”^[20]  The complainant’s mother said the police officer asked the complainant if anyone had asked her to change her story and the complainant replied, “No”.
64. [64]
    The complainant’s interview with police on 4 March 2020 was played to the jury.  In it, the complainant made allegations of repeated sexual touching by the appellant over a period of almost three years.  The touching was said to include touching her vagina many times.  The complainant said she told her mother that the appellant would follow her into the shower or her bedroom.  The appellant would touch all parts of her body.  He would use his fingers to clean the sides of her vagina.  That happened often.  The appellant also regularly felt her breasts.
65. [65]
    The complainant’s evidence, pre-recorded on 25 November 2021, was also played to the jury.  In evidence in chief, the complainant said everything she said in the interview with police was not the truth.  The part where she said the appellant touched her on the vagina was not true.  The appellant did touch her on her “boobs and [her] butt”.  The complainant told the police things that were not true because the appellant had been touching her inappropriately.
66. [66]
    The complainant said that the touching first began around 2015.  The appellant would come into the shower, weekly, although sometimes he would miss a week or two.  There was also an occasion when she was sitting downstairs, lying on a couch and the appellant took her pants off and started touching her “boobs”, “butt” and around the top of her vagina with his hands.
67. [67]
    In cross-examination, the complainant said that she did mention the incident which occurred on the lounge, to the police.  She said she had a clear recollection of it, but could not say what year or month it had taken place.  The complainant accepted that subsequent to the police interview, she had spoken to a prosecutor.  She could not recall giving an answer about being touched in the living room, when asked by the prosecutor whether there was anything she did not tell the police, or anywhere where the appellant had touched her, other than in the bathroom.  She accepted that she may have said to that prosecutor that she did not tell the police because she did not think about it and had just answered their questions.
68. [68]
    The complainant was unable to give any specific details of the occasions on which the appellant touched her breasts or bottom.  It was definitely more than twice, but could not say if it was more than 10 times.  It would usually be in the morning when her mother was working.  Sometimes it would happen before school, sometimes after school.  She said it was quite deliberate touching in the shower, not accidental.
69. [69]
    The complainant accepted that when she returned home from the police station, she told her mother that she had made the allegations up and that she had lied to police.  The appellant had not put his finger in her vagina.  The complainant agreed that when she went back to speak to the police, she told them that she had made up the allegation that the appellant had been touching her on the vagina.  She also told police that no one had told her to change her story.  The complainant accepted that her allegation of touching on the vagina was serious, but said she did not think that her mother was going to report it to the police.  She lied to the police because she had already lied to her mother.  She could not lose face with her mother.
70. [70]
    The complainant accepted she had given police a detailed story about the appellant taking off her clothes and scraping dirt out of her vagina.  The complainant agreed that was a lie.  She had told lies because she was angry with the appellant, because he had been touching her for many years.  She wanted to make it sound worse to her mother than it really was as she wanted her mother to leave the appellant.  The complainant said the appellant was mean to her and ignored her most of the time.  The complainant did not accept that the touching of her breasts and bottom was accidental.  She also did not accept that what she had told her mother about those things was untrue.
71. [71]
    Subsequent to giving that evidence, the complainant was further cross-examined on 28 October 2024.  That cross-examination was also played to the jury.
72. [72]
    In that cross-examination, the complainant accepted that on 26 March 2020, after she had gone to police for the second time, Child Safety officers came to her house.  She told the Child Safety officers that she had lied about the sexual abuse incidents.  She agreed that by that stage the appellant had left the house.  She was happy he had left because she did not like him, because he told her what to do.  She accepted that she told those officers that she had not been forced to say those things.  The complainant accepted that everything she had said to the Child Safety officers was the truth.  She agreed it was true that the appellant never put his fingers inside her vagina, never touched her vagina, never touched her breast and never intentionally touched her bottom.  The complainant accepted that any touching was accidental and that her evidence was now the truth.  The complainant confirmed, in re-examination, that the appellant did not touch her breasts, bottom or vagina.
73. [73]
    The prosecution played to the jury, the recording of the interview between the police and the appellant, on 5 March 2020.  In that interview, the appellant was told that police were investigating an allegation of rape received from the complainant.  When told that the complainant had provided a statement to police on the previous day, in which she said that she had been sexually assaulted by the appellant, the appellant replied, “That’s not true.”^[21]  The appellant did, however, say, “I can acknowledge that in 2017 that’s when I was touching her, starting touching her … on the breasts and the bum.”^[22]  The appellant said the complainant was telling him that she did not like it.  He also said there was a day in 2017 when she went to have a shower.  He followed her into her room after her shower.  The complainant was naked.  He told her she needed to shower and shave.  He said he did not touch her, he just observed her.  On another occasion he touched her bottom, whilst hugging her.  The appellant said it was not frequently.  He said he touched her breasts with his hands.  He thought the cause of this touching was that he had been watching pornography recently.
74. [74]
    The appellant told police that when his wife came home, the complainant explained everything to her.  His wife was very angry.  The appellant said he told his wife that he wanted to touch the complainant, but she said “no”.  He asked his wife for forgiveness and said he would no longer repeat it.  The appellant said that his wife then called the appellant’s mother and brother.  They were told that the appellant had been touching the complainant on the breasts and bottom.  They said it was not good behaviour and for him not to repeat it again.  After that, he did not touch the complainant again.  The appellant denied ever putting his fingers inside the complainant’s vagina.  He also denied ever touching her in the vagina.
75. [75]
    Prior to closing the prosecution case, formal admissions were made as to the complainant’s date of birth; addresses at which the complainant and her mother had lived with the appellant; the dates during which they had occupied those premises and that a disc was an accurate recording of the discussion between the appellant and police officers on 5 March 2020.
76. [76]
    Admissions were also made in the following terms:

“7. On 20 March 2020 [the complainant] met with the Department of Child Safety.  Notes were taken during that meeting, in which the following was recorded to have been said:

1. [The complainant] had not seen [the appellant] since he had left the house and that she was OK about him leaving.
2. [The complainant] preferred it when it was just her and her Mum.
3. [The complainant] didn’t think it would cause this much of a problem, but that she told Police that he [the appellant] had touched her because she didn’t like him, she didn’t like him when he came, he would make rules and make her change the channel if she was watching something bad.
4. [The complainant] didn’t feel bad, but didn’t feel good.  Right and wrong things because she told them lies.
5. He [the appellant] hadn’t said anything, it’s things he does.  If they [the appellant, the complainant] were playing, he would touch me accidentally.  [The complainant] guessed she didn’t like him.  [The complainant] was a bit judgmental.
6. [The complainant] wouldn’t want to live in a house where that (sexual touching) is happening.  [The complainant] would tell.
7. [The complainant] didn’t have anything against him [the appellant] but she just didn’t like him so she told mum.
8. They [the appellant, the complainant’s mother] hadn’t forced [the complainant] (to retract her complaint) as her parents weren’t like that, but if something like that happened, she would tell them (Department of Child Services) because [the complainant] wouldn’t feel comfortable in her own home.
9. [The complainant] couldn’t keep it up and that’s why she told her Mother.  [The complainant] didn’t think it would blow up as big as it did.

8. On 17 June 2021 [the complainant] met with the Office of the Director of Public Prosecutions.  Notes were taken during that meeting, in which the following was recorded to have been said:

Prosecutor:  Was there anything you didn’t tell the police or anywhere that he touched you other than the bathroom?

[Complainant]:  Yes, he touched me in the living area.  I was on my iPad with my legs up on the couch, and he took my pants off and touched my bum.

Prosecutor:  Do you remember any more detail than that?

[Complainant]:  No

Prosecutor:  Why didn’t you tell the police?

[Complainant]:  No, because I didn’t think about it.  I just answered the questions.”^[23]

77. [77]
    The appellant elected to give evidence, but not to call evidence.  In his evidence, the appellant said that he was born in the Congo and spoke three languages, Kifuliiru, Swahili and French.  He also spoke some English.  The appellant said he left the Congo in 2010/2011, as people were being killed by police officers at night.  He feared the police.  Whilst he was in a refugee camp, he married the complainant’s mother.  He travelled to Australia to live in 2015.  He had not taken English classes since arriving in Australia.  The appellant said that once he moved to live with the complainant and her mother, they had a good relationship.  However, his rules would upset the complainant.
78. [78]
    The appellant said he had never previously been interviewed by police.  He did not know that he did not have to attend the police station.  He accepted that during the interview he admitted to touching the complainant on the bottom, but said that touching in French does not have a sexual connotation.  He meant, by touching each other, that it was not intentional, it was accidental.  His reference to pornography was that he did not want the complainant to keep watching pornography, because it would destroy her.  His reference to a desire to touch the complainant was talking about when they previously played together.  When he told police that he felt ashamed, he meant he was ashamed to see the complainant watching pornography.  His constant apologising to police was because he had already asked for forgiveness regarding the rules he had established in the house and for being too strict towards the complainant.  The complainant was hating him for being so strict.  His reference to it not happening again was about the things he had asked the complainant to do.  When he told police that he would not touch the complainant again, he was confused and tired.  He meant he would not treat the complainant poorly again.  The appellant said he did not touch the complainant’s vagina.  His reference to on the top of the vagina was to pointing with his finger, not touching it.  His acceptance to having touched the complainant on the breast and bottom was to accidental touching.  They were just playing.  He did not touch the complainant in a sexual way.
79. [79]
    In cross-examination, the appellant accepted that he was asked by police whether he came to the police station of his own free will and that he had replied “yes”.  The appellant said he did not have a choice.  When police came to his home, it reminded him of something that had happened in his home country.  He did not have a choice, he had to go.  He also did not understand when the police officer asked him if he wanted a lawyer.  He accepted he was happy with the way the police treated him.  The appellant said they did not hit him or do anything to him.  He only first realised that he did not have to speak to police when he went and spoke to his lawyer.  When he told police “I came by my willingness”, he meant “I came because I had to come”.
80. [80]
    The appellant denied ever touching the complainant sexually.  He was talking about when they were playing games, he would touch her by accident, not intentionally.  He also meant that the complainant was watching pornography.  That was why he was taking her iPad and hiding it.  He denied watching pornography of young teenagers.  He had clicked on teenage ones to see what the complainant was watching.  He did not touch the complainant’s breasts or vagina.  It was language issues.  There were mistakes with his words and he did not realise it was a mistake.  When asked why he made so many mistakes, the appellant said, “Because English isn’t my first language, and I was confident I was understanding, but I was not understanding anything.”^[24]

Consideration

Ground 1

81. [81]
    In refusing the application to exclude the appellant’s record of interview from being admitted in evidence at his trial, the pre-trial judge correctly recognised the police officer’s mandatory obligation under s 431 of the PPRA and Sch 9 s 26 of the PPRA regulations, to caution the appellant as to the right to silence and to ensure that the appellant understood that caution.
82. [82]
    Further, the pre-trial judge accepted that the police officer had cautioned the appellant and had endeavoured to ensure that the appellant understood that caution.  However, the pre-trial judge specifically accepted that the appellant’s effort to explain the caution, concerning the right to silence, was “gobbledygook”.
83. [83]
    Whilst the trial judge was satisfied that the appellant did understand that it was “okay” if he chose not to answer questions, as the pre-trial judge recognised, the caution, which is required to be given in respect of the right to silence, deals with a number of concepts.  The first is the right to choose whether to remain silent, or to answer questions.  The second is that anything that is said, or any statement made, may later be used as evidence.
84. [84]
    Once it was found by the pre-trial judge that the appellant misunderstood the caution, there was a requirement for the pre-trial judge to be satisfied not only that the appellant understood his choice was whether to remain silent, or to answer questions, but also that anything that was said, or any statement made, may be later used as evidence.  The pre-trial judge had no basis upon which to conclude that the appellant did understand the second aspect of the caution.  The police officer made no effort to further explain that aspect of the caution.
85. [85]
    As the trial judge observed, the police officer, on three separate occasions, told the appellant that he did not have to answer questions, that he would not get into trouble if he did not talk to the police officer and that it would be “okay” if he chose not to answer questions.  None of those occasions addressed the second, equally important aspect of the caution concerning the right to silence.
86. [86]
    That being so, there was no basis upon which the pre-trial judge could have been satisfied that the police officer’s mandatory obligation had been met, or that the appellant understood the caution fully.  Accordingly, the appellant’s record of interview ought to have been excluded from being admitted into evidence at the appellant’s trial.
87. [87]
    There was also another basis upon which the appellant’s record of interview ought to have been excluded, in the exercise of the trial judge’s discretion.
88. [88]
    The police officer who attended the appellant’s residence, on the day prior to the record of interview, gave evidence that he told the appellant that he wished to speak to him in relation to a matter (about which no further details were given) and that he requested the appellant attend the police station, giving details of the address.  Such a conversation did not comply with the police officer’s mandatory obligations under s 22(2) of the Police Responsibilities Code 2012.
89. [89]
    That Code, contained within Sch 9 of the Police Powers and Responsibilities Regulation 2012, provides mandatory requirements in relation to asking persons to attend for questioning.
90. [90]
    Relevantly, s 22 states:

“Asking persons to attend for questioning

1. This section applies if a police officer wants to question a person as a suspect, other than a person mentioned in section 398 of the Act.

2. If the police officer approaches the person when not at a police station or police establishment, the police officer must caution the person in a way substantially complying with the following—

‘I am (name and rank) of (name of police station or police establishment).

I wish to question you about (briefly describe offence).

Are you prepared to come with me to (place of questioning)?

Do you understand that you are not under arrest and you do not have to come with me?’.

…

5. If the police officer reasonably suspects the person does not understand the caution, the officer may ask the person to explain the meaning of the caution in the person’s own words.

6. If necessary, the police officer must further explain the caution.”

91. [91]
    It was submitted by the respondent that this ground ought not to be allowed to be raised on the appeal, as it was not the subject of submissions before the trial judge.  However, evidence was given by the police officer as to his best recollection of the conversation with the appellant.  That evidence clearly indicated that the police officer did not comply with s 22, in that the appellant was not told that he did not have to go with the police officer.  There was no basis therefore to conclude that had the matter been expressly raised before the trial judge, further evidence could have been given by the police officer in respect of this conversation.
92. [92]
    Further, the matter was the subject of evidence before the trial judge, including evidence by the appellant that he did not know that he did not have to attend the police station.  That was consistent with the appellant not having been told by the police officer, that he did not have to go to the police station.  The fact that the appellant, in the course of cross-examination, responded affirmatively to a question by the prosecutor that he had been so advised, does not change the nature of that evidence.  There was no factual basis for the question that was put by the prosecutor.  The answer, accordingly, had no factual basis to suggest that such information was provided by the police officer when he attended the appellant’s residence.
93. [93]
    At the hearing of the appeal, the respondent properly conceded that if this Court concluded that the record of interview ought to have been excluded from being admitted into evidence at trial, there was no evidence that could have satisfied a jury, beyond reasonable doubt, of the appellant’s guilt of any of the offences.
94. [94]
    For the abovementioned reasons, verdicts of guilty were to be set aside and verdicts of acquittal entered in their stead.

Other grounds

95. [95]
    The conclusion reached in respect of ground 1 renders it unnecessary to consider the remaining grounds, subject to one observation.
96. [96]
    The trial judge, in ruling that the complainant’s evidence was inadmissible at trial, save for how the allegations arose and explaining why the appellant was interviewed by police, left the parties to agree appropriate admissions, to be made in the prosecution case, as to the fact that the complainant had made allegations on a specified date and expressly recanted those allegations on a subsequent date.
97. [97]
    After the ruling, the prosecution indicated an unwillingness to make those necessary admissions, on the basis that the prosecutor was unable to do so.
98. [98]
    The prosecution’s obligation was to comply with the ruling.  That ruling required suitable admissions to be made by the prosecution.  Their obligation was to do so, to ensure that the trial was conducted fairly, according to law.
99. [99]
    The consequence of the prosecution’s failure to act fairly, was, as defence counsel observed, to place defence counsel in the invidious position that there was no choice but to ask for the complainant’s evidence to be played, so that there was an explanation before the jury as to the circumstances in which the appellant participated in a record of interview with police.
100. [100]
     The playing of the complainant’s evidence had the consequence that the jury heard the nature of allegations which had been expressly recanted by the complainant, in circumstances where there was then submitted, that the trial judge had to give the mandatory directions under s 103ZY of the Evidence Act.  It is unnecessary to determine whether, in the particular circumstances, that mandatory obligation applied, having regard to the lack of reliance, in the prosecution case, on the complainant’s credibility.  However, an obvious consequence of the giving of that direction was that the jury, without further directions, could impermissibly use those observations to doubt the complainant’s recantation of the allegations, in circumstances where that was not a proper basis upon which the prosecution could advance verdicts of guilty of the offences.