R v HDA[2025] QCA 166

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Brown JA.
2. [2]
   BOND JA:  I agree with the reasons for judgment of Brown JA and with the order proposed by her Honour.
3. [3]
   BROWN JA:  The appellant was convicted of 16 offences committed against his granddaughter after a two day trial.  The verdicts, charges and sentences imposed were as follows:

4. [4]
   The appellant seeks to appeal the convictions on two grounds namely that:

   1. the verdict on all counts were unreasonable and cannot be supported having regard to the evidence (Ground 1); and
   2. the learned trial judge erred in failing to grant the application for a mistrial (Ground 2).
5. [5]
   As to the first ground, the court is required to carry out an independent assessment of the evidence of its own.

The Evidence

6. [6]
   The principal evidence came from the complainant who gave evidence of the offences which occurred.  Her mother gave evidence of preliminary complaint.
7. [7]
   The complainant gave two interviews on 26 February 2021 and 2 March 2021 which were interviews admissible under s 93A of the Evidence Act 1977 (Qld) (s 93A interviews).  The interview on the first occasion followed her mother asking her if anything had occurred with the appellant.  The second interview followed the complainant complaining of a sore ‘‘front bum’’.  The disclosure of offending took place over the two interviews.  The complainant was nine years of age at the time of the interviews.
8. [8]
   The complainant had been interviewed by police on an unrelated matter on 25 February 2021.  She made no complaint on that occasion of any sexual assault by the appellant.

Complainant’s Evidence

9. [9]
   A summary of the complainant’s evidence in the s 93A interviews included the following, adopting the order in which they were revealed by the complainant, which is relevant to how the appellant has framed his argument.

The First Interview

Counts 15 and 16

10. [10]
    After the complainant had spoken to the police the day before, the complainant remembered some things and that she had then talked to her mum about it and told her what the appellant had been doing and showed her.  The last time she could remember something happening was on the previous Tuesday when she slept with the appellant.  The complainant stated she was sick and started watching a police show on television.  The appellant had put his hand down and rested his hand on her chest which she said were also called “boobies”.  He moved his hand around and squeezed the right side of her breast.  This was the conduct the subject of count 16.
11. [11]
    At the time, she was wearing a crop top and shorts.  Nothing was under the crop top but she was wearing underwear.  The appellant also put his hand on her leg and up to her vagina.  He moved his hand around and it stayed there for a bit on her vagina and went back down on the top of her shorts.  That conduct was the subject of count 15.
12. [12]
    She also described where she was on the bed and where the appellant was on the bed and what they were watching.

Counts 3 and 4

13. [13]
    The first time when offending took place was at the appellant’s house before the family were asked to leave.  She was eight years of age.  She said he did things when she was asleep.  She was a light sleeper and kind of awake “[b]ut I can still like, um, see and feel stuff”.^[1]  Sometimes she would open her eyes and sometimes keep them closed so it looked like she was asleep and she would roll the other way.^[2]  She was half asleep and half awake at the time and felt the appellant’s hand on her vagina moving around which was like tickling, itching or scratching over her clothing.  She was wearing a loose dress with black spots and a rainbow, with underwear underneath.  His hand was on the top of her dress.  That conduct was the subject of count 3.
14. [14]
    Approximately one week later the appellant did the same with his hand, like scratching and tickling her vagina.  She remembered he did that two times.  After the first occasion she rolled over the other way so he’d stop but then got uncomfortable and rolled back over.  She stated the appellant stopped for a couple of minutes but then did it again.  That conduct was the subject of count 4.

Count 7

15. [15]
    An incident which occurred at a hotel near Australia Zoo and Aussie World during school holidays.  She had gone there with the appellant and her brother.  There was a big bed which fit two people and a single bed.  She slept one night with the appellant and one night in the single bed.  On the night she slept with the appellant in the big bed, when she was “half asleep, half awake”^[3] the appellant touched her vagina on the outside of her clothes in a similar way to the other incidents she had previously described.  The nightie she was wearing had little fairies with pink dresses on who were ballerinas.  This was the subject of count 7.
16. [16]
    When asked whether there was anything different about how he touched her compared to the other times she had described, she said she thought it was the same way.

Other Acts

17. [17]
    When asked whether there was a time when the appellant had done something different, she said “Um, I don’t think so”.^[4]  The police officer asked her to think about that.
18. [18]
    As to when there was anything else that the appellant did other than touching her boobies and vagina, the appellant had hugged her and squeezing her bottom.  Sometimes when he kissed her, she could feel his tongue go in on her mouth and lips “like he puts it on my mouth and then after I can feel it I just jump back ‘cause I can see his lips are really dry.”^[5], in response to being asked whether there was anything else the appellant had done to her.  Sometimes the appellant kisses behind her ear and tries to blow in it.
19. [19]
    The appellant did not speak to her about the offending nor warn her not to say anything about what had occurred in terms of his touching her.  She didn’t say anything to anyone because she didn’t think much about it and she “…didn’t know it wasn’t right.”^[6]
20. [20]
    The police officer at the end of the interview told the complainant if she remembered anything else to come back and talk to her again.

The Second Interview

21. [21]
    In the second interview on 2 March 2021, the complainant said she was there to talk about the appellant again.  She had told her mother “about [the appellant] putting his penis in my vagina.”^[7]  She had told her mother the day before because she was sore and when her mother asked why, she said because “[the appellant] put his penis in it”.^[8]
22. [22]
    The second interview revealed further and more serious offending conduct against the complainant, which included the complainant saying what follows.

Counts 12, 13 and 14

23. [23]
    The appellant had, “maybe two weeks ago” when she was watching a video said “touch this”^[9] and had his pants down.  She said she had been facing the other way and heard him say look at me, at which time she saw him pulling down his pants.  She looked away.  It was the last occasion the complainant had slept with the appellant by herself, which she thought was two weeks ago because the boys weren’t in the bedroom.  This was the subject of count 12.
24. [24]
    He said “touch this” he wanted her to touch his rude part.  He asked her to pull her undies down and pull up her dress so he could see it.  This was not the subject of a charge.
25. [25]
    At around the same time, she could remember was the appellant touching her vagina with his finger on top of her undies, the subject of count 13.  She rolled over and then a few hours later she rolled back and the appellant put his penis in her vagina which just stayed still until she moved.  That formed the subject of count 14.  She was half asleep at the time but “[n]ot fully asleep ‘cause the TV was a little bit too bright.”^[10]  She was lying on her right shoulder.  He pulled her undies down and then his pants down which she saw when she quickly opened her eyes and then shut them again.  His penis was hanging out on top of his pants and he moved closer to her and put it in her vagina after taking the blanket off both of them.  It felt “[b]ig and weird”.^[11]  She moved back and rolled over and he tried to roll her over but she stayed the other way.  She thinks she was wearing a loose top and undies.

Count 11

26. [26]
    A further incident occurred “about a month ago” which was about a week before her eye was sore.^[12]
27. [27]
    The appellant had put his penis in her vagina when she was in his bedroom by herself.  It was nighttime when he thought she was asleep but she wasn’t, her undies were down and he put his penis in her vagina which touched “like in the middle”.^[13]  She stated it felt like her vagina opened up and the penis went in and her vagina closed around the penis.  That conduct was the subject of count 11.
28. [28]
    The appellant didn’t say anything about the offending, but after he had done something to her, he would buy her something and give it to her.  After this incident the appellant got her a stuffed Walkalot Llama.

Counts 1 and 2

29. [29]
    An incident occurred when she was in grade one and the family were living at Collingwood Park.  She described her teacher at the time.  She got to keep a pillow for the day.^[14]  They were living at a different house and her younger brother was only “like a little baby” and her mum was at hospital with him.^[15]  She slept with the appellant because she was scared of the dark.  The appellant put his finger in her vagina “he would like put it [in] there and do the same, what he did with his penis, but do it with his finger”.^[16]  That conduct was the subject of count 1.  The appellant also put his penis in her vagina when she was “mostly asleep.”^[17]  She remembered she got a toy in the morning.  She couldn’t remember anything else.  That conduct was the subject of count 2 and occurred after the conduct the subject of count 1.

Counts 5 and 6

30. [30]
    On another occasion when the complainant was on school holidays in 2020, she was visiting the appellant at the end of school holidays.  She described an event when she didn’t roll over.  She was so tired that she couldn’t move and roll over.  Her brother was sleeping in a different room.  She was in the appellant’s room.  The appellant put his penis in and rested his hands on her boobies in the same way as she had previously described (count 5).  He then put his penis in her vagina (count 6).
31. [31]
    The above conduct was the subject of counts 5 and 6.

Counts 7, 8, 9 and 10

32. [32]
    She recalled further detail of what occurred at the hotel when they went to Aussie World and Australia Zoo and she was on the big bed with granddad when asked about whether there was any other place where he had touched her vagina or put his penis inside her vagina.  She had forgotten to tell the police on the first occasion.  The appellant “did put his penis in my vagina, but I forgot about that as well”.^[18]  The appellant did pretty much the same thing “like the penis in vagina, resting a hand on boobies, putting his finger in my vagina”.^[19]  These acts formed the subject of counts 10, 8 and 9 respectively.  The appellant had bought her a bikini for that trip.  The appellant would tie the top but it would start to loosen in the swimming pool.
33. [33]
    Touching her vagina on the outside of her clothes which occurred on the same night at the hotel was the subject of count 7, previously described in the first interview.
34. [34]
    The appellant resting his hand on her breast was the subject of count 8.  Putting his finger into her vagina was the subject of count 9.
35. [35]
    The complainant described her vagina being sore after the appellant had put his penis in it.  It went in halfway.  That was the subject of count 10.
36. [36]
    When asked by the police officer why she hadn’t told the police officer about the appellant putting his penis in her vagina when they had the previous interview she said, “[c]ause I forgot about it last week.”^[20]

Other Matters

37. [37]
    The complainant described the appellant’s penis as being “yucky, big and stuff that I shouldn’t be looking at”.^[21]  She said she reacted more quickly when he put his penis in.^[22]  She described about half his penis as going in.^[23]  When the penis went in, she said it would make her feel sore, which is why she moved back and rolled over.^[24]
38. [38]
    The complainant confirmed there were three places where the appellant had put his penis into her vagina or touched her vagina, namely at the hotel at Aussie World and two different addresses, one when they lived with the appellant and one when they lived nearby.^[25]
39. [39]
    The complainant described how she knew the appellant put his finger in there like he did with his penis.^[26]  She knew it was his finger because she opened her eyes a “teensy tiny bit”.^[27]  She said that he put as much of his finger as “he could possible [sic] get in there.”^[28]  She could feel like he was trying to put more of it in and she kept moving back  because  it “…felt like really weird and not right”.^[29]  She was in grade one and he hadn’t done it since then.

Uncharged Acts

40. [40]
    The complainant gave evidence of uncharged acts in both interviews relating to when the appellant allegedly put his hand on her breast and moved it around a number of times, to other occasions on which the appellant placed his penis in her, to him asking her to touch his penis and asking her to pull her pants down and dress up so he could see and his trying to look at her ‘rude part’ when she was on the toilet.  In addition, she referred to the appellant kissing her and that his tongue would go into her mouth.  There is no issue that appropriate directions were given in this regard by the learned trial judge.

Cross-examination

41. [41]
    At the time of her pre-recorded evidence the complainant was ten.  Prior to cross-examination she confirmed that she had watched the recordings of her interviews with the police and that everything she had told the police in the interviews was the truth.^[30]
42. [42]
    The complainant was tentative and sometimes reticent in her responses to cross-examination.  The appellant gives the following six examples:^[31]

    1. when asked if she remembered telling the police officer on 2 March 2021 that the appellant would stick his finger or fingers into her ‘front bum’, the complainant said ‘Not really’;^[32]
    2. when asked if she remembered telling the police that at same time the appellant put his fingers in her ‘front bum’, he also put his penis in her ‘front bum’, the complainant said ‘Not quite’;
    3. when asked if she remembered telling the police about the first time the appellant put a finger in her ‘front bum’, the complainant said ‘A little bit’;
    4. when asked if she recalled telling police that while in the motel room the appellant put his penis in her ‘front bum’, the complainant said ‘No’;
    5. when asked if she remembered telling police that when she was staying with the appellant and her brother at the motel room, the appellant put his fingers in her ‘front bum’, the complainant said, ‘Not quite’; and
    6. when asked if he remembered telling police that after the appellant touched her vagina that he then put his penis into her ‘front bum’, the complainant said, ‘A little’.
43. [43]
    In other parts of her cross-examination about her previous evidence, the complainant did not remember telling the police, that:

    1. the appellant ever kissed her on the mouth with his tongue;
    2. the appellant put a finger or fingers in her ‘‘front bum’’;
    3. the appellant touched the complainant's vagina over her clothes; and
    4. the appellant put his hand on her vagina under her clothes.
44. [44]
    However, when specific questions were put to her about what occurred her responses were more direct:

“Your grandfather has never kissed you on the mouth with his tongue. Do you agree or disagree?---I can’t remember.

[complainant], your grandfather has never ever touched you on the thighs. Do you agree or disagree?---Disagree.

Disagree. And by disagree, what does that mean? Are you saying that he did touch you on the thighs?---Yes.

Okay. Your grandfather never ever put a finger or fingers in your front bum. Do you agree or disagree?---Can’t remember.

Your grandfather never ever put his penis in your front bum. Can you – do you agree or disagree?---Disagree.

Disagree?---Disagree.

[Complainant], your grandad never ever touched your front bum over your clothes. Do you agree or disagree?---Not quite sure.

And you’re not sure because you can’t remember or - - -?---I can’t remember.

[Complainant], your grandad never ever used his hand and placed it on your vagina under your clothes. Do you agree or disagree or don’t remember?---Don’t really remember.

Your grandad has never ever touched your breast over your clothes. Do you agree or  disagree?---Disagree.

Your grandad has never touched your breast underneath your clothes. Do you agree or disagree, [complainant]?---Can’t really remember.

Your grandfather has never shown you his penis. Do you agree or disagree?---Disagree.

And [complainant], finally, your grandfather has never ever done any yucky things to you, has he? Do you agree or disagree?---Disagree.

Now, [complainant], I’m going to ask you this, [complainant], you know your mum?---Yes.

Have you been talking to your mum about this court matter?---Yes.

Okay. Now, [complainant], has your mum told you to say these things to the police? Is – has - - -?---No.

Okay. So it’s not the case, [complainant], that your mum has told you to lie about things to the police?---No.

And you’re sure about that?---Yes.”^[33]

Complainant’s Mother

45. [45]
    The complainant’s mother also gave evidence which included the following.
46. [46]
    She had lived with the appellant on and off until the allegations were made by the complainant.  She had commenced living with the appellant in August 2019 with her three children, two boys and the complainant.  They had moved out in August 2020 but moved back in December 2020.  She corroborated the complainant as to places where the complainant had given evidence that they had lived at various times.
47. [47]
    The complainant had slept with the appellant on a number of occasions.  One son had health issues and she went to the hospital and stayed with him while they were living with the appellant.  She took her youngest son with her while the complainant stayed at the house and was looked after by the appellant.  The complainant had slept with the appellant in his bed regularly, including at both addresses where the complainant had said sexual offending had occurred.
48. [48]
    The appellant took the complainant on holidays, including Aussie World.  He also took one of her other sons on holiday with the complainant including when they went to the Sunshine Coast.  She observed the appellant buying the complainant things including a pink bikini when they were going to Aussie World and Australia Zoo and toys.
49. [49]
    The complainant had suffered an eye injury in February 2021 after tripping on concrete.
50. [50]
    After the police had spoken to the appellant on 25 February 2021 about an unrelated matter, she had asked the complainant whether the appellant had done something naughty and touched her where she shouldn’t be touched.  The complainant had said she thought that he had.  The complainant did not give details.  She said the complainant was emotionless at the time.  She then took the complainant to the police the next day.
51. [51]
    In cross-examination the complainant’s mother said that when the complainant had told her she’d been touched she had made an upside down u shape and described it being from one thigh across to the other thigh.
52. [52]
    On 1 March 2021, the complainant said her ‘front bum’ was hurting and said she thought the appellant had put his penis in her ‘front bum’ and that had occurred the last time the complainant slept in the appellant’s bed, which was the Tuesday before the appellant was arrested.  She then took her to the hospital the next morning and then to the police.
53. [53]
    The complainant’s mother said she and the complainant had a strained relationship since the complainant had made the complaints in relation to the appellant.  She said prior to the complaints, the complainant had not confided in her.  Nor had she ever had a discussion with the complainant about sex or good touching and bad touching.
54. [54]
    She rejected the suggestion that the appellant’s door would stay open when the complainant slept with him.  The complainant’s mother generally corroborated the complainant’s evidence as to timing of events, location and the identity of the teacher referred to by the complainant.

Other Evidence

55. [55]
    Evidence was given by a paediatrician who found no abnormalities or injuries after a genital examination.
56. [56]
    While there were no physical signs of sexual assault of the complainant, the doctor stated that that was quite common with young victims of sexual assault.  The doctor’s evidence was that he could not rule out the possibility of sexual abuse.  The paediatrician said that it was not unusual for girls the complainant’s age to suffer urinary infections, as had been described in evidence as being suffered by the complainant during the period of the alleged offending.
57. [57]
    Detective Sergeant Maya Barton who conducted the s 93A interviews gave evidence.  She gave evidence that she had interviewed the complainant on 25 February 2021 and that the complainant was not asked about any sexual offending against her by the appellant in that interview.

Defence

58. [58]
    The defence at trial submitted that the events in question had never occurred.  The defence counsel went through the complainant’s evidence in detail in terms of inconsistencies, inadequacies and her responses in cross-examination to demonstrate to the jury whey they should not accept her evidence.  Counsel also sought to raise motive to lie as a result of some alleged insurance dispute between the appellant and his daughter, the complainant’s mother.  Both the appellant’s daughter and his granddaughter denied having spoken about her evidence before she spoke to the police.  Quite properly, the counsel who appeared pro bono for the appellant on the appeal did not seek to raise that matter in support of his argument as a basis of appeal.

Summing Up

59. [59]
    The trial judge gave a detailed summing up.  In particular the trial judge cautioned the jury to scrutinise the complainant’s evidence carefully stating:^[34]

“So, ladies and gentlemen, there are a number of features here that should cause you to scrutinise [the complainant’s] evidence with care before you reach a conclusion of guilt. Obviously, there has been delay in the complaint ultimately being made to the police and to the mother. The medical evidence was equivocal. There is no evidence of any injury. The hymen appeared normal. You will recall that the doctor said that the fact that there is a normal finding does not mean that there has not been any sexual penetration, but the fact that the evidence is equivocal is something you should consider. There is no independent support for these allegations.

That there are some inconsistencies in how the complaints were made, for example, when the complainant is first interviewed by police, she makes no disclosures at all about her grandfather. Then when she is interviewed on the 26^th of February 2021, she makes some disclosures about the indecent treatment, but when asked by the police officer, “Did your grandfather do anything else? Is there anything else?” she said, “No”. And then she talks to her mother, and you heard the evidence about that. And she goes back on the 2^nd of March 2021 and then makes the disclosures about the penile rape.

So for all of those reasons, ladies and gentlemen, you should scrutinise her evidence carefully before reaching a verdict of guilty on any charge. If, after scrutinising her evidence carefully, you are satisfied beyond reasonable doubt that she is both truthful and reliable, then, of course, you can find him guilty of those charges.”

60. [60]
    His Honour also gave appropriate directions in respect of the evidence of uncharged acts and gave a detailed summary of the rival contentions including reading out a number of excerpts of the defence counsel’s closing, challenging the complainant’s evidence that any sexual offending had occurred.

Legal Principles

61. [61]
    The appellant contends that the verdict is unreasonable and cannot be supported having regard to the evidence because proper consideration was not given by the jury to inconsistencies and discrepancies in the evidence of the complainant and as between the complainant and her mother which should have caused the jury to have reasonable doubt.
62. [62]
    In M v The Queen^[35] the majority^[36] observed that where it is sought to set aside a verdict on the ground that it is unreasonable and cannot be supported having regard to the evidence, the question is one of fact which the court must decide by making its own independent assessment of the evidence.  The court must examine whether, notwithstanding there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand” (footnotes omitted).^[37]
63. [63]
    The majority in M stated that even where there is evidence to sustain a verdict, the question which an appellate court must ask itself “is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.^[38]  The court must not, however, in answering that question disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility in determining guilt or innocence or the consideration that the jury has had the benefit of having seen and heard the witnesses.^[39]  The High Court in The King v ZT^[40] recently confirmed that the test in M remains the correct test to be applied and that it requires any assessment to take into account the advantages that the jury has in assessing the evidence in a trial.
64. [64]
    Relevant to the present case are the observations by Sofronoff P in R v Miller, as to the limitations enunciated in M where he stated that:^[41]

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

65. [65]
    Also relevant to the present case, given the complainant’s age at the time of giving evidence, are the observations of Sofronoff P in R v Allen (a pseudonym)^[42] recently endorsed by Bond JA in R v WCH^[43] that:

“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.”

Consideration

Ground One

66. [66]
    The appellant contends that the Court in undertaking its own assessment of the evidence as a whole should conclude that the jury acting rationally should have entertained a reasonable doubt as to the appellant’s guilt.
67. [67]
    The appellant contends that the probative value of the complainant’s evidence was diminished or undermined by:

    1. the complainant’s answers to the police in the first s 93A interview that there were no other incidents and that the appellant had not touched her vagina in any other way than she had described in the first interview, but then described both penile and digital penetration in the second interview.  That included saying that additional sexual offending had occurred while staying at the hotel when they visited Aussie World and Australia Zoo;
    2. the complainant had said in the first interview that the appellant had not tried to get her to touch him, but then in the second interview said that he had attempted to get her to touch his penis;
    3. her evidence that a significant amount of the offending happened while she was asleep;
    4. the complainant’s lack of recall as to what she had told police in the s 93A interviews when cross-examined which have been referred above;
    5. the delay in making the complaint including the lack of complaint by the complainant in the interview with police on 25 February 2021 about the appellant offending against her raised doubt as the veracity of the complaints made by her; and
    6. inconsistencies between the medical evidence and the allegations of sexual offending raised by the complainant.
68. [68]
    Having assessed the evidence as a whole I consider that the jury could be satisfied of the appellant’s guilt of the offences with which he was charged.
69. [69]
    In particular, the following matters that are relevant to the assessment of the evidence:

    1. the complainant was only nine years old at the time of her police interviews, ten at the time of cross-examination and had been aged between five years and nine years of age when the events she described occurred;
    2. there was a gap of approximately eighteen months between her police interview and her being cross-examined; and
    3. she had spent a lot of time with the appellant since a young age and had developed a close relationship with him.
70. [70]
    The evolution of the complainant’s evidence over the two interviews with police did not diminish or undermine her evidence such that it should have been rejected.  It accords with what one would expect from a young person of the complainant’s age who is unworldly and inexperienced disclosing for the first time what had occurred to her in circumstances where she stated that she didn’t understand what was occurring.  That is further supported by:

    1. her only disclosing to her mother after her mother had asked questions of her; and
    2. her statements that she didn’t understand that what was occurring or that was wrong although she began to wonder about it in grade one.^[44]
71. [71]
    The complainant’s disclosure over the two interviews to the police was consistent with a child who had not processed what had occurred to her and her disclosure was therefore a gradual one.
72. [72]
    Her progressive responses in each interview were contributed to by skilful interviewing by the police officer concerned who asked questions that built on a feature of a previous disclosure, such as when she was given a gift by the appellant the day after the incident.  The questioning was done in a skilled way generally using open questions but testing the responses by repeatedly emphasising the need for the complainant to tell the truth based on what she knew and asking for explanations as to why she had not previously disclosed the allegations of penetration in the previous interview.
73. [73]
    Her response in the first s 93A interview when asked whether the appellant had ever done something different that “I don’t think so” was asked after her saying that she didn’t think the appellant had touched her differently on the vagina when she was at the hotel to see Australia Zoo from what she had described before.  Her failure to make disclosures of any penetration as she did in the second interview was readily explicable by the fact she may not have understood that question was directed to any touching through penetration by the appellant’s finger or penis as opposed to touching of a similar nature to what she had described.  That is supported by the fact that earlier in the interview when she said the appellant had done something different from what she had earlier described, it was his moving his hand around a lot,^[45] not just a little.^[46]
74. [74]
    While the appellant contends that the complainant’s disclosures were undermined by her saying she was asleep when a number of the incidents occurred, that argument does not take into account her full evidence.  When asked if she knew or saw the things that she said occurred during her sleep, the complainant explained that she appeared to be asleep but was half awake and half asleep and had used techniques such as rolling over to deter the appellant from continuing to touch or penetrate her and had quickly opened her eyes on occasions and shut them.  On other occasions, she was so terrified she could not move.
75. [75]
    The appellant’s submissions seek to attach greater significance to the complainant’s evidence in cross-examination than is reasonably open.  Firstly, the questions as to what the complainant had described in the police interview were framed in terms of whether she remembered telling police about the various offending, as opposed to remembering the offending itself.  It was reasonable for a child of nine years to have understood the questions asked literally and that what was being asked was whether she recalled telling the police of certain incidents rather than the question seemingly challenging that the incidents had ever occurred in fact.  When that challenge was directly made she maintained that the matters she told the police were true and had occurred.  Secondly, when challenged by questions that her grandfather had never touched her in the way alleged, put his penis or his fingers in her vagina, she generally disagreed but in response to a couple of the questions said she couldn’t remember.  That is consistent with candour.
76. [76]
    The fact that there were some inconsistencies in her evidence when cross-examined and a lack of recollection of earlier events some eighteen months after the s 93A interviews is unsurprising.  The evidence in the s 93A interviews could be accepted as the more accurate evidence of what had occurred consistent with the observations in R v Allen (a pseudonym).
77. [77]
    A jury could accept that the complainant’s s 93A interviews were sufficient evidence of the events which, if accepted, establish that the offending occurred and properly given limited weight to the responses of the complainant in cross-examination.
78. [78]
    The complainant’s evidence in the s 93A interviews supported the jury’s verdicts of guilty.  The complainant confirmed that what she had said in those interviews was true when giving her s 21AK evidence.
79. [79]
    Similarly, the complainant’s evidence was not undermined by her failing to make any disclosure to the police in her interview of 25 February 2021.  She was not asked about whether the appellant had engaged in any sexual offending towards her on that occasion and it was only after that time in response to questions from her mother that she made any disclosure of sexual offending.
80. [80]
    The criticisms raised by the appellant are quintessentially matters where the jury held the advantage in assessing the complainant’s evidence.
81. [81]
    The complainant’s disclosures to her mother of what had occurred although scant that the appellant had touched her doing a hand signal in an upside down u towards her groin area and later that the complainant thought the appellant had put his penis in her ‘‘front bum’’ and it was hurting and that it occurred the last time she slept with the appellant was consistent with what the complainant told the police in the first and second interviews respectively although far more detail was given.  More significantly the mother’s evidence was also corroborative of the complainant’s evidence in a number of respects, including in terms of locations where they had lived, that the complainant slept in the appellant’s room, that the door was not kept open and the identity of the complainant’s teacher when she was five.  Her evidence of particular events having occurred such as the complainant and the complainant’s brother staying at a hotel on a visit to Aussie World and Australia Zoo, the complainant having injured her eye, her brother being sick in hospital and staying overnight with him and the appellant buying the complainant gifts including a pink bikini were also corroborative of the complainant.
82. [82]
    While the appellant sought to contend that the medical evidence had greater significance given the weakness in the complainant’s evidence in terms of contradicting it, the medical evidence was of no assistance to either the Crown or the defence.  The doctor’s evidence was that the lack of physical injury did not rule out that sexual abuse had occurred.  In that regard, the sexual contact was not described by the complainant as having been vigorous.  The complainant’s evidence was that she estimated that only half of the appellant’s penis had gone inside her and been kept still.^[47]  Her description of the appellant’s penis and how it felt was consistent with some penetration having occurred and the fact it made her vagina sore.
83. [83]
    As stated above the matters complained of by the appellant were matters in relation to which the jury held an advantage.  The deficiencies in the complainant’s inconsistencies or inadequacies in the complainant’s evidence highlighted by the appellant were matters that were clearly put before the jury by the defence as the basis upon which they should reject her evidence and were traversed in a careful summing up was given by the trial judge in relation to their assessment of evidence.  The inconsistencies and deficiencies that arose in relation to the complainant’s evidence are not of a nature which undermines the assessment made by the jury and the verdicts of guilty returned.  The verdicts returned for lesser alternative offences in relation to some of the offences demonstrated that the jury did not just accept the complainant’s evidence without question and took into account its shortcomings.
84. [84]
    Having regard to the evidence as a whole, a jury could be satisfied beyond reasonable doubt, of the offences for which the jury returned verdicts of guilty.

Ground Two

85. [85]
    As to the second ground, the appellant contends that the trial judge erred in failing to refuse to discharge the jury after that complainant’s mother gave the following evidence in chief referring to a warrant:^[48]

“All right. Now, taking you back to February of '21, did you have occasion to call the ambulance for your dad?---Yes.

And when they arrived, did they - did the police also arrive?---Yes.

And did you father end up in hospital?---Yeah.

And did they - did the police come back and ask to speak to [the complainant] on the 25^th of February?---They came through with a warrant, yes. Yeah.

And they took [the complainant] back to the station?---Yeah.

And they had a chat with her; is that right?---Correct.

And when she got home from the police station, did you sit [the complainant] down and have a talk to her?---Yes” (emphasis added).

86. [86]
    The trial judge refused to order a mistrial:^[49]

“This is an application to declare a mistrial and discharge the jury because the witness, [complainant’s mother], was asked about – incident in February 2021 when she had to call the ambulance – or someone called the ambulance for the defendant. Police also arrived, and the defendant went to hospital. And then on the 25^th of February 2021 the witness said that – “Is that the day the police came with a warrant and spoke to the complainant?”… Mr Ahlstrand is concerned that the jury may think that the warrant is for something else other than speaking to the complainant, and might be prejudicial, and he has asked for the discharge.

It seems to me in the way the evidence came out that the jury aren’t going to make much of it at all, and don’t know how much, if any, experience the jury have with police matters. But the way it came out in that order simply indicated that the police were there on an earlier occasion and they came with a warrant and spoke to the complainant. They may simply think that’s what the police need to do to speak with a complainant. I don’t think there’s any undue prejudice at all to the defendant, and I really don’t think I need to do anything about a direction. So the application to discharge is refused. I don’t think I should give a direction - - -.”

87. [87]
    Defence counsel at that time agreed no direction should be given as it would unnecessarily draw the jury’s attention to the evidence of a warrant.
88. [88]
    The jury subsequently asked questions of the trial judge,^[50] including: “Why did the police come to the house on 25 February?  Why was she interviewed on 25 February 2021” and “Why was the ambulance called”.^[51]  In response the trial judge directed the jury that those matters were not in evidence, that they were to concentrate on the evidence, not speculate about why those things occurred and that they were to ignore those matters.^[52]
89. [89]
    The appellant contends that the questions asked by the jury demonstrated what defence counsel had been seeking to avoid in applying for the jury to be discharged, namely highlighting and emphasising the prejudicial evidence and the drawing of an adverse inference against the appellant.  Defence counsel contends that no direction could have overcome the prejudice and the jury should have been discharged.
90. [90]
    The question for this Court is not only whether the correct principles were applied by the trial judge in refusing to discharge the jury, but whether this Court considers in all of the circumstances the failure to discharge the jury risked a miscarriage of justice.^[53]  Leeway must be allowed for the trial judge to evaluate considerations relevant to fairness of the trial.^[54]
91. [91]
    There was no error of principle by the trial judge in his ruling, nor did the evidence of the warrant give rise to a miscarriage of justice.
92. [92]
    First, the evidence was ambiguous.  There was no evidence of any link between the warrant and the appellant.  There was no evidence that that warrant was connected with the appellant nor the substance of it.  There was nothing which suggested it related to any allegation of sexual offending by the complainant or by anybody else against the appellant.  As was made clear to the jury by the evidence before the jury, no complaint had been made by the complainant of any sexual offending until questions had been asked by her mother after she had returned from the police station on 25 February 2021.
93. [93]
    Secondly, the mention of a warrant of itself was not evidence that was likely to be prejudicial or capable of causing the jury to draw any adverse inference against the appellant particularly in the context of the matters stated in the preceding paragraph.  The evidence as to the attendance by the police at the appellant’s residence and their interview of the complainant was relevant and a necessary part of the narrative.  That evidence also favoured the appellant, being used by the defence to challenge the complainant’s credibility by highlighting the fact that the complainant had spoken to the police the day before her s 93A interview but had made no complaint that the appellant had sexually touched her.
94. [94]
    Thirdly, while questions were asked by the jury of the events of 25 February 2021, those questions did not suggest that they had attached any significance to the reference to a warrant or that they drew any adverse inference against the appellant by reason of that reference.  The questions of the jury were directed to why the police were there, an ambulance had been called and the complainant had been interviewed.
95. [95]
    Fourthly, given the lack of any evidence linking the warrant and the appellant and the content of the warrant, absent speculation by the jury, avoiding reference to it in the summing up and in the closing addresses was appropriate to ensure the fairness of the trial in order to not draw any attention to it.  In any event, the trial judge’s response to the questions asked by the jury, referred to above, made clear that the reason that the ambulance and police were at the residence and the complainant was interviewed on 25 February 2021 was not evidence and that they were not to speculate about why those things occurred and were to ignore them.^[55]  In light of that direction, any possible prejudice by the mention of a warrant was neutralised and no miscarriage of justice occurred.
96. [96]
    The admission of evidence referring to the warrant did not affect the accused having a fair trial, nor could it reasonably be considered to have caused the verdict of guilty to be intrinsically flawed.^[56]
97. [97]
    Neither ground of appeal has been established and the appeal should be dismissed.

Order

98. [98]
    The order of the Court should be:

1. The appeal is dismissed.