R v SER[2025] QCA 168

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 12 April 2023, the appellant was convicted by a jury of one count of supplying a dangerous drug to a child (count 1), three counts of indecent treatment (counts 2, 4 and 6) and three counts of rape (counts 7, 10 and 11) of that child, and a further count of taking that child for immoral purposes (count 8).  The offences were committed between October 2017 and early 2018, against a boy aged 11 to 12 at the time.  The jury was unable to agree on a verdict in respect of a further two counts of rape (counts 3 and 5) and one count of assault occasioning bodily harm while armed (count 9).
2. [2]
   The appellant appeals against his convictions on the sole ground that the verdicts are unreasonable and cannot be supported having regard to the evidence.^[1]  The essence of the appellant’s argument is that the uncorroborated evidence of the complainant was plagued by inconsistencies, uncertainties and improbabilities to such an extent that, notwithstanding the jury’s subjective assessment of the complainant as an honest and reliable witness, there is a real doubt as to the appellant’s guilt.^[2]
3. [3]
   In determining this appeal, the Court must consider whether “upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.  In answering that question the Court must pay full regard to the considerations that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and that the jury has had the benefit of having seen and heard all the evidence.^[3]  Although the Court is required to undertake an independent assessment of the sufficiency and quality of the whole of the evidence, “that assessment is undertaken in a context in which an appeal is as much of an adversarial process as the criminal trial from which the appeal is brought and in which it is for the parties to identify the evidence that the appellate court must review and assess and the features of that evidence that support their respective cases on appeal”.^[4]  The Court does not determine the appeal by simply reconsidering the parties’ respective cases at the trial.
4. [4]
   Consistent with these principles, counsel for the appellant has identified the material points the appellant relies upon to demonstrate his argument.  In order to understand and assess the merits of those points, however, it is necessary to view them in the context of the evidence as a whole.
5. [5]
   Having undertaken the requisite assessment of all the evidence, as explained below, we are not persuaded that the verdicts were unreasonable.  The appeal is therefore dismissed.

The Crown’s case

6. [6]
   The Crown’s case was that the complainant, a young boy of 11, met the appellant, who lived near him, in late 2017.  A number of young people in the area, including the complainant, sometimes used to hang out at the appellant’s place.  The appellant gave the complainant cannabis, and sexually offended against the complainant on four different occasions from late 2017 to early 2018.
7. [7]
   The first occasion was 19 October 2017.  The complainant had run away from home that morning after a fight with his mother.^[5]  He went to the appellant’s house.  The appellant gave him cannabis which he smoked (count 1, supplying drugs to a minor).  The appellant then took his pants down and made the boy masturbate his penis (count 2, indecent treatment) and then anally raped the boy (count 3, rape).  As noted above, the appellant was convicted of count 1 and 2, but the jury could not reach a verdict on count 3.
8. [8]
   The second occasion happened a few weeks later, when the complainant went past the appellant’s house, saw his younger brother’s soccer ball, and went to get it.  The appellant grabbed him by his shirt and dragged him inside.  The appellant gave the complainant some kind of drink, which caused him to feel sleepy.  Before the complainant fell asleep, the appellant made him masturbate his penis (count 4, indecent treatment).  The complainant then passed out.  When he awoke, his anus felt as if it had been penetrated again, the same as the time before (count 5, rape).  The appellant was convicted of count 4, but the jury could not reach a verdict on count 5.
9. [9]
   The third occasion was when the appellant’s wife had picked the complainant up and taken him back to the appellant’s house.  After the wife left, the appellant again made the complainant masturbate him (count 6, indecent treatment) and anally raped him (count 7, rape).  The appellant was convicted of both counts 6 and 7.
10. [10]
    The fourth occasion was when the appellant found the complainant in an empty paddock, a short distance from their houses.  The appellant took the complainant back to his house (count 8, taking a child for immoral purposes).  Once back at the house, the complainant tried to resist him, so the appellant beat him with “a black instrument”^[6] (count 9, assault occasioning bodily harm while armed).  The appellant then forced his penis into the complainant’s mouth (count 10, oral rape) and then again anally raped the complainant (count 11, rape).  The appellant was convicted of each of these counts, save for count 9.
11. [11]
    The issue at the trial was whether any of these events occurred at all.

The evidence at the trial

12. [12]
    The complainant’s evidence before the jury comprised the recordings of his interviews with police on 14 and 22 March 2019,^[7] and his pre-recorded evidence given in court on 12 October 2020.^[8]
13. [13]
    At the time of the interview on 14 March 2019, the complainant was aged 13.  He told police he had come to see them to talk about a guy who raped him.  He said he did not like using his [the guy’s] name because it made him feel uncomfortable.  The complainant said he could not remember the date but that “he just forced me into doing it… and he forced me into doing all this like, like, all acts like … he made me do things to his thing, and he did things to me…”.
14. [14]
    He described the appellant’s house as a place “where everyone would like hang around”.  When asked about the “first time” something happened, the complainant said he had gone down to the appellant’s place on his scooter, looking for CC, his friend.  The appellant told him CC was “in there”, so the complainant went into the house, but CC was not there.  He said the appellant also lived with a lady, K and her daughter, S.  Other evidence showed K was the appellant’s partner.  The complainant said the appellant gave K and S a reason to leave “and then he made me do things to him”.  The complainant said the appellant made him “touch him, his thing” and then he “put his thing in, down there”.  Pressed for more detail by the officer, the complainant said the appellant made him grab his penis and “made me like pull it up and down” and made the complainant “let him put it in my backside”.  The complainant said the appellant let him go when a car pulled up, that the complainant thought was K’s car, and then he ran out and grabbed his scooter and went home as fast as he could and “just cried in my room”.  A short time later in the interview, the complainant corrected himself and said that “the first time”, the appellant “dropped me home actually”, and that it was the “third time” when he had scootered there.
15. [15]
    The “next time”, the complainant said it was pretty much the same.  This was maybe a month after the first time.  He remembered seeing his brother’s ball on the step of the appellant’s house.  He walked up to grab it, and then the appellant “grabbed my shirt and pulled me in”.  He said he was wearing a blue polo and the appellant ripped it.  The complainant was able to produce the blue polo shirt to the police, and photographs of it were tendered as exhibit 11.  The complainant said the appellant did the same thing (as the first time), although it was “kind of different” because one of the appellant’s mates was there and he “poured me a drink” and then left.  The complainant told police the appellant poured him a drink “and made me drink it, and then all I remember was him making me do that with his penis again, and then I woke up, ‘cause I, I think he put something in the drink, and then I woke up and thing was hurting, my butt was hurting, like he did it again”.  The complainant said when he woke up, “my bum felt weird … and I left with the ball… and went home”.
16. [16]
    The complainant said the “third time” was “pretty much the same as the first”.  He said he was at the fish and chip shop, and K found him there and brought him back to her house.  The appellant was there.  K then “disappeared” and the appellant “did it again, like the same thing”, that is, “he made me grab his penis again and do the same thing” and “then he did the same… like he put his penis into my bum … and went in and out again”.  The appellant told him not to tell anybody.
17. [17]
    The “fourth time”, the complainant said he “wasn’t even near his [the appellant’s] house”, but the appellant “tried grabbing me again, I tried pulling away, and then he whipped me with like, I think it was like a stick or like a, I don’t know what it was, it was like a black looking thing… and then I started bleeding”.  The complainant said he was in a paddock, about three houses down from his house, riding his bike, when the appellant “grabbed me”.  When asked to tell the police officer more about this the complainant said:

“I was riding my bike, I didn’t even see him, I was like trying to do my chain, and then he said stand up, and I stood up and then he grabbed me, and then I yelled out to Mum and then I saw her look out, and then he pulled me down the street, and like people were walking so I was just walked with him… like ‘cause I was …scared, like he looked at me like he was gonna… hit me…”.

18. [18]
    The complainant said he walked with the appellant until they got to the appellant’s house.  He then tried to run off, but the appellant pulled him back, and tried to pull him back into the room.  The complainant said the appellant “whipped” him with “a bendy thing”, “like it was a leather, and it was bendy… it wasn’t a pole, it was like, like a whipping thing”.  On this “fourth time”, the complainant said the appellant “made me lick his penis”, that he “pushed my head down and made me do it … put my whole mouth over it” and “made me do that [suck his penis] for like three minutes”.  The complainant said the appellant then “made me turn around and then he put his penis into my bum, and I told him to stop about five times, and he just didn’t stop”.  The complainant said after the appellant stopped, he told the complainant that if he told anyone “he would put, inject needles into me”.  The complainant then ran up the road.
19. [19]
    The complainant said after the “third time”, when he went home his mum asked him what was wrong.  He said “I just lied about it ‘cause I was scared about what he [the appellant] said”, “and I said it was someone else”.  The complainant said he made up a name, and said that made-up person had sexually abused him, but his mother “didn’t really believe me”.  It was not until later, in response to a homophobic slur from his brother, that the complainant told his mother what the appellant had done.
20. [20]
    When the police asked the complainant how he felt when the appellant did these things, the complainant said he felt “scared, and I just felt like giving up after it, I started to have suicidal thoughts… angry at everybody”.
21. [21]
    The complainant said he could not remember particular dates or times when these things occurred, although thought once it happened at night, because he remembered looking up at the appellant and seeing his clock in the background which was “a big clock with the date there… it said the ninth”.  He said it was on the wall in the kitchen, and you could see it from the lounge.  The complainant described the clock as “like a white and black one one like… a school one”.  A photograph of the clock, identified as the one the complainant saw, was tendered as exhibit 5.  It is an ordinary analogue clock, with no date.  When the complainant was later cross-examined about this, he denied saying to the police that the clock had a date on it.
22. [22]
    The complainant was interviewed again by police a week later on 22 March 2019.  The complainant was asked why he used go to the appellant’s house.  He said it was because the appellant would give him marijuana.  The complainant said the first time he went to the appellant’s house, his girlfriend’s (ER) mum took him there, “and that was pretty much the first time I smoked weed”.  The complainant said he then started going to the appellant’s house all the time, because “they [the appellant and K] were giving me weed and stuff” and made him feel welcome.  He said that the sexual offending did not happen “until like twenty times later, like I was there all the time”.
23. [23]
    In relation to the “first time” the appellant sexually assaulted him, the complainant said in this interview that he went to the appellant’s house, went inside and asked if CC was there, and they [the appellant and K] said he had just left.  When the police officer noted he had previously said he went there looking for CC, and the appellant said he was inside, the complainant explained that “I was kind of covering up that I was smoking weed… ‘cause I thought I was going to be in trouble [for smoking weed]”.  The complainant also said that on this occasion, he smoked some weed, and then sat on the couch and when he went to get up, the appellant made him stay – by shutting the front door and locking it – and made the complainant take his pants off.  The complainant said the appellant told him to pull his pants down, or he would tell the complainant’s mother he was smoking weed.  The complainant said he did not want to get in trouble so he did it.
24. [24]
    During this second interview, the police officer recorded that after the previous interview stopped, the complainant had mentioned that on the “last time”, the appellant had ejaculated, and asked the complainant to tell him about that.  The complainant said “there’s not really much to say, he just did it and then it felt really wet, and then… everywhere … inside of me”.  He said he went home and had a shower and tried to go to the toilet, trying to “get it out”.  He said he thought the “last time” was sometime in the first two months of high school, which was early 2018.
25. [25]
    The complainant subsequently gave evidence in a court hearing on 12 October 2020 which was video-recorded and then later presented at the trial, under s 21AK of the Evidence Act.  He was 14 at the time he gave this evidence.
26. [26]
    In his evidence in chief, the complainant was shown and confirmed a map or plan that he had previously drawn, showing the location of the appellant’s house, as well as some photographs of the house (inside and outside), as well as the clock (exhibit 5) and his blue polo shirt (exhibit 11).
27. [27]
    The complainant was then shown three photos, and asked if he recognised the items shown in them.  He said yes and described them as “poles” (exhibit 9).  He said he remembered the poles from the loungeroom.  He also agreed that he had talked to police about the poles.  When asked “what did you tell police about the poles?”, the complainant said “that he [the appellant] whacked me with one”.
28. [28]
    The complainant was also shown, and confirmed, a photograph of an injury to his leg, which he said was where the appellant had “whacked me with a pole and it split” (exhibit 10).
29. [29]
    The complainant was then asked some questions about the “second time”, when he said he was given a drink of some kind and then fell asleep.  The complainant gave evidence that when he woke up, his bum was sore, “as in, like, something went in there”.  He also said that when he woke up he was fully dressed, wearing the same clothes as before.
30. [30]
    In cross-examination, the complainant gave evidence that there were times when his stepfather was very violent to his mother, and the police were called, and that his mother and stepfather were also using ice and smoking cannabis.  Because of that, he was taken away to live with his grandmother for about six months, before the offending by the appellant.  His biological father was in jail.
31. [31]
    In response to matters put to him in cross-examination, the complainant gave evidence that the appellant only ejaculated on one occasion, that he never used lubrication, and would hold him, “under the waist”, “hip down” when raping him.  He was asked whether, when he was made to touch the appellant’s penis, the appellant took his pants off, or pulled them down to his knees.  The complainant responded, saying:

“I don’t – I don’t remember.  I don’t really know.  I can’t remember.  It’s not the things you, fucking, take note.  It’s just …”

32. [32]
    When asked if he did not remember it, the complainant said “No, I do.  It’s just – I can’t bring myself to say half of it.”  The complainant was asked if he ever noticed any tattoos on the appellant’s legs and said “not that I can remember”, “I didn’t see any tattoo”.  There was an admission made at the trial that the appellant had a large tattoo on his front right thigh.  The admission included photographs of the tattoo (exhibit 23).
33. [33]
    It was put to the complainant in cross-examination that the appellant did not sexually abuse him in any way, or rape him.  The complainant emphatically disagreed.
34. [34]
    The complainant was not cross-examined about the pole(s) shown in exhibit 9.  It only emerged after his evidence was pre-recorded that the kite pole shown in exhibit 9 could not have been the weapon used.  It was admitted at the trial that the kite shown in exhibit 9 was not at the appellant’s home at the time of the offending; it was only taken there in March 2019.
35. [35]
    The complainant’s “girlfriend”, ER, was interviewed by the police on 24 November 2019.  She was a year younger than the complainant, so was in grade 5 in 2017.  She gave evidence of a complicated relationship with her mother, who at times was “badly on drugs and she’d beat me up”.  ER had been to the appellant’s house; she went there with her mum, who used drugs with the appellant’s partner, K.  ER said she had never been to the appellant’s house with the complainant. She and the complainant “broke up” towards the end of term four in 2017, because he was going to high school and she was going to a different primary school.  ER described the complainant sometimes being with her mum, when she was not there.  She knew about this because her mother would send her photos of the complainant and her mother together.  ER told the police that the complainant had told her he was touched by the appellant.  He told her this close to the time when she spoke to the police.
36. [36]
    CC, the complainant’s friend, gave evidence that he had never been into the appellant’s house before.  He described one time when he saw the complainant go up to the house, and talk to a guy who was behind a screen door.  He said the complainant stayed on the road, and did not go into the property.  He thought this was in October 2018.
37. [37]
    Another friend of the complainant’s, TB, gave evidence.  He provided a statement to police on 3 November 2019.  The statement, which was in writing, not video-recorded (exhibit 18), was read out to the jury.  TB  said that about a week before, he and another friend had been approached by the appellant.  The appellant said that the complainant “was writing statements on you”.  TB told the appellant he did not believe that, and the appellant then said (of the complainant) “he’s a dog.  He’s got me up for a lot of charges, and if you could go to court as a representative for me to say that you bashed [the complainant] that would help me”.  The appellant then said he was not making any promises but would “most likely help yous out at the end if you do it”, which TB said he took to mean the appellant “would pay us”.  TB later told the complainant’s mother about this conversation, and then spoke to the police.
38. [38]
    In cross-examination, TB’s lengthy criminal history, including for offences of dishonesty, and history of drug use was traversed.  It was not put to TB that the conversation he said he had with the appellant did not occur.  It was put to TB that what the appellant had said was that it would help the appellant’s case if TB would give evidence about a time that he, TB, had bashed the complainant, and that the appellant never said he would help TB out if he did that.  TB maintained that the appellant did say “he would help us out if me and my friend … went and seen his lawyer…”.
39. [39]
    The complainant’s mother gave evidence.  She described something that happened in March 2019, when the complainant and his brother were playing a video game, and the brother called him a name like “faggot” or something like that.  The complainant reacted violently and his mother had to pull him off his younger brother.  Following that, the complainant had a number of conversations with his mother, as she tried to find out what was wrong.  The mother asked the complainant if something happened to him, and the complainant eventually told her that the appellant “had raped him”.  The complainant did not mention the appellant’s name in the first conversation they had.  The mother said she played a sort of “guessing game”, listing names of people, to get the complainant to identify who it was.  Although the mother initially said the complainant eventually brought up the appellant’s name, in cross-examination she agreed that she mentioned the name “B” (the appellant’s first name), and the complainant reacted to that.
40. [40]
    The complainant gradually disclosed things to his mother over a number of days.  He told his mother it had happened four times.  One of the times was a day on which the complainant had left home, in circumstances which made his mother call Child Safety.  It was admitted that Department of Child Safety records showed the complainant’s mother reported that he was missing on 19 October 2017 (the date referred to in counts 1, 2 and 3).  The complainant’s mother said the complainant did not come back until late in the afternoon, and was dropped off in a car.  Another time the complainant told his mother was when he was trying to get his brother’s soccer ball back; and another time was when “[the appellant] pulled him from the vacant lot that was in our street”.  The complainant also told his mother that it was the appellant who caused an injury which left a scar on the complainant’s leg, rather than the complainant’s friend, TB.
41. [41]
    In cross-examination, defence counsel asked the mother about her various conversations with the complainant in which he disclosed these things.  In relation to one of them, there was the following exchange:

“There was another conversation where [the complainant] told you about being dragged or taken from a paddock?---Yes.

And he yelled out to you?---Yes.

You didn’t see that?---No.

You didn’t hear that?---No.

Okay. And obviously, if you had seen or heard that, you would’ve done something about it?---Yes.”

42. [42]
    The mother also gave evidence, in cross-examination, that she had never said she did not believe the complainant, after he told her he had been sexually abused.
43. [43]
    The investigating police officer gave evidence at the trial.  Among other things, he accepted in cross-examination that the complainant had told him that he thought a woman had seen him being taken from the paddock, but the police officer did not make any enquiries about that until a fortnight before the trial (so, three years after interviewing the complainant).  He also confirmed that no statement was obtained from the appellant’s partner, K,  because she died before the complaint was made to police in March 2019.
44. [44]
    The appellant did not give or call evidence.

The parties’ closing arguments

45. [45]
    In his closing submissions, the prosecutor argued that the jury would accept the complainant’s evidence about the offending beyond reasonable doubt, because the complainant’s core evidence proved he was describing a real memory, the evidence of various surrounding circumstances confirmed the complainant’s evidence, and the complainant’s evidence included a number of features which proved he was telling the truth.  Defence counsel argued that they would not accept the complainant as honest or reliable, by reference to 24 “inconsistencies and contradictions” in the complainant’s two police interviews, which defence counsel went through in detail.  Defence counsel submitted the complainant’s evidence was full of inconsistencies, a number of things he said were illogical and implausible, that any one of the many points should give rise to a reasonable doubt, but in combination the many points meant the jury could not convict the appellant on the complainant’s evidence.

The trial judge’s summing up

46. [46]
    In summing up the case for the jury, the learned trial judge properly identified that:

“… the ultimate question for you in this case is whether, after considering the whole of the evidence and following the directions I shall give you in this summing-up, you are satisfied beyond reasonable doubt of [the appellant’s] guilt on any of the counts. You could only reach such a conclusion if, after scrutinising it with great care, you are satisfied beyond reasonable doubt of the truthfulness of the evidence [the complainant] gave in support of each count under consideration and that very much is the central issue in the case. If you are not satisfied beyond reasonable doubt about both his honesty and reliability in at least these essential respects, you must acquit [the appellant]; that is, find him not guilty.”

47. [47]
    After giving the usual direction to the jury that it was for them to decide whether to accept any witness’s evidence, the trial judge gave a clear Markuleski^[9] direction,^[10] as follows:

“Having said that, it does seem that in this case you will have to pay special attention to the evidence of [the complainant]. I say again, as both counsel have suggested to you, that this trial really does turn on your assessment of his honesty and reliability. Of course, I have told you that the counts are different, and your verdicts need not be the same, that’s true. And even though I have just said to you, and it is true that you may accept or rejects such parts of the evidence as you see fit, it would be the case that if you do have a reasonable doubt concerning the truthfulness or reliability of [the complainant’s] evidence in relation to one or more of the counts, or more generally, for example, if you have a reasonable doubt about the truthfulness and reliability of his assertion that he’d been given cannabis by [the appellant] on prior occasions other than − that is prior to count 1 − and whether that doubt was created by reference to his demeanour or because he has given inconsistent evidence, as suggested by [defence counsel], or any other basis, if you have a doubt about his evidence on one matter, that must be taken into account when assessing his truthfulness and reliability generally.

Further, if for any reason you entertain a reasonable doubt about his evidence concerning any element of a particular offence, you must find [the appellant] not guilty of that particular count. That follows from the directions I have already given you. But there is more to it than that. Whilst it does not follow from that that you cannot convict on any other count, you will have to consider why you have that reasonable doubt about his evidence in relation to the other count and consider whether it affects the way you assess the rest of his evidence; that is, whether your doubt about an aspect of the evidence causes you to have a reasonable doubt about his evidence in relation to any other count.

The same applies in relation to any doubt you entertain about a group of offending. Say, for example, you entertain a reasonable doubt about the truthfulness and reliability of the account [the complainant] gave in relation to the last episode of alleged offending which has as its genesis [the complainant], according to him, being dragged from the paddock and marched up a street and then a main road past at least a dozen houses. If considering that causes you to have a reasonable doubt about that episode of offending, well that is something you would need to take into account when assessing his evidence on all of the other counts.

So you cannot simply silo his credibility, his honesty or reliability, just in relation to one particular aspect, you need to consider how it might impact across the whole case.

It will be obvious to you, although you do have some evidence from other witnesses, that the only evidence that can actually prove any of the offences is the evidence from [the complainant] himself. So as a matter of common sense, you will have to scrutinise his evidence with great care before you could arrive at a conclusion of guilt on any count.”

48. [48]
    The trial judge also gave a Longman^[11] direction, in the following terms:

“He [the complainant] was very young when he first spoke to the police; he was still relatively young when he gave evidence in court that was pre-recorded. There are also, it cannot be doubted, many differences between the accounts he has given over time. [Defence counsel] has addressed you on what he submitted to you were at least 24 examples of that.  Also, if we might focus for a moment on the offence of rape in which it is alleged that [the appellant] ejaculated, count 11, you might think there’s some significance to the lengthy delay between that incident in early 2018 and the time when [the appellant] would have first become aware of that allegation, which necessarily would have been after March, or at the earliest March 2019.

As a result of that delay, he was deprived, for example, of the opportunity to insist upon a timely scientific examination of, for example, [the complainant’s] underwear. That might have been highly relevant to this allegation of ejaculation, and you heard the questions and answers given this morning by the police officer in that regard, and I asked a couple of questions.

Further, the delay between the alleged offending and the making of a complaint to the police might also have made it more difficult for [the appellant] to work out where he was at a particular time, who was with him, what he was doing, and things of that nature at the time of the alleged offending. For these reasons, I direct you that you will need to scrutinise [the complainant’s] evidence with great care before you could arrive at a conclusion of guilt in this case. As I have already told you, and as I emphasise, you can only act on his evidence if, after placing it under that sort of scrutiny, you do conclude that it is both truthful and reliable.”

49. [49]
    The trial judge concluded the summing up with a comprehensive summary of the closing arguments of the prosecutor and defence counsel, assisted by written summaries provided by both counsel.
50. [50]
    After retiring to consider their verdicts, the jury requested to see some parts of the complainant’s recorded evidence again.  There was a break of a few days between the request and the footage being replayed, due to the Easter long weekend.  For that reason the trial judge gave detailed directions to the jury about the importance of considering all the evidence, and not placing undue weight on the evidence they had heard again.  His Honour also reminded the jury, in some detail, of the arguments of both counsel.
51. [51]
    There is no complaint on this appeal about any aspect of the trial judge’s summing up.

An accumulation of issues affecting the complainant’s credibility?

52. [52]
    The appellant submits that there was an “accumulation of issues” in this case which, objectively, ought to have caused the jury to have a reasonable doubt about the accuracy of the complainant’s allegations.  The issues include both fundamental inconsistencies within the complainant’s evidence itself, as well as a lack of corroboration from the evidence of other witnesses.
53. [53]
    Counsel for the appellant said it was accepted that the jury, having seen and heard all the evidence, found the complainant to be a credible and reliable witness.  He also acknowledged the heavy burden placed on an appellant who seeks to overturn the verdict of a jury on this ground.  It was not submitted by either party that there was any forensic purpose in this Court watching the recorded evidence,^[12] and so we did not do so.  The argument on the appeal focussed upon the content of the evidence, having regard to the written appeal record, and what was said to be the objective effect of the accumulation of issues.  For the respondent, it was submitted that the trauma and discomfort the complainant was experiencing, having to answer questions from the police and then in court about the offences, was apparent on the face of the transcripts of the recordings, and that is accepted.
54. [54]
    The appellant emphasised the following matters, which are a substantial subset of the 24 matters emphasised at the trial:

    1. The complainant accepted in his evidence that the kite pole in exhibit 9 was the implement the appellant assaulted him with (for the purposes of count 9), but that was admitted to be impossible.  It is also said that the complainant’s mother contradicted him in relation to the timing of the injury, that the complainant initially told his mother he was injured in a fight, inferentially with one of his friends, and his mother corroborated this.

As to this, the respondent submits the complainant’s acceptance of the kite poles as the implement is an example of gratuitous concurrence to a leading question put to him by the prosecutor.  That is a fair assessment.  When one has regard to the complainant’s unprompted evidence, when interviewed by the police, he did not describe a pole – in fact, he said it “wasn’t a pole”, but was a black, leather, “bendy thing”.^[13]  In addition, it is to be remembered that the jury was not able to reach a verdict on count 9, which demonstrates the jury’s careful consideration of the evidence.

2. The complainant’s initial description to police of the first incident was devoid of detail and “not consistent with lived experience”.

As to this, the respondent submits it is not clear what “lived experience” is referred to, and that what is apparent from the interviews with police is that the complainant’s story gradually unfolded in response to police questioning, which is unsurprising, given the traumatic circumstances and the complainant’s young age.  This is accepted.  As this Court has previously observed, the development of an account as questioning proceeds is not uncommon in cases involving child complainants.^[14]

3. The complainant’s evidence was internally inconsistent as to when he was “whipped” by the appellant – describing it as the third time on one occasion, and then the fourth time on others.

The respondent submits that this overstates the complainant’s evidence, because he did not positively state that the “whipping” happened on the third occasion.  The complainant said “I think it was the third time”.  That is correct.

4. The complainant was internally inconsistent when he described who was present at the appellant’s house, including more people as his account developed.
5. The complainant said he went to the appellant’s house to find CC, and the appellant told him he was there; but this was implausible because CC’s evidence was that he had never been to the appellant’s house.

As to this, the respondent draws attention to the need to consider the whole of the complainant’s evidence, in so far as it concerned CC.  Looked at as a whole, it was not the case that the complainant said CC was actually at the appellant’s house.  Accordingly, there is not the direct inconsistency submitted by the appellant.  To this should be added that CC did not say he had never been to the appellant’s house, only that he had “never been into” the appellant’s house.

6. The complainant said he first went to the appellant’s house with ER; but ER denied ever seeing him there.

As to this matter, the respondent submits that it is not clear that the complainant did say he first went to the appellant’s house with ER.  What the complainant told police is that ER’s “mum took me there”.  The complainant said he was bored, and he was with ER, and then “we went there”.  But read in context of his earlier statement that ER’s mum took him there, the evidence is ambiguous, and does not therefore reveal a clear inconsistency.  This is also accepted as correct.

7. The complainant told police the first time he smoked cannabis was with the appellant; but he admitted in cross-examination that he had smoked it an earlier time (with ER’s mother).

In addition to the respondent’s point about this matter (that it concerns a relatively minor detail), it should be observed that the complainant explained in his second interview with the police that to some extent he underplayed his previous consumption of weed, because he did not want to get into trouble.  That is an understandable worry on the part of a 13 year old boy.

8. The complainant had a history of telling lies.  The example given is that he had lied to his grandmother about stealing money from her change box.

As to this, the respondent submits that the fact a child such as the complainant (indeed any child) might tell a lie about some minor or trivial things, does not compel a conclusion that he would lie about the serious and distressing offending conduct he described to police and maintained when he gave his evidence in court.  We accept this submission also.

9. The complainant was able to give a detailed description of what he observed of the appellant’s penis (that it had “weird veins on it”) but was unable to describe obvious details such as the presence of the tattoo on the appellant’s right thigh.

As to this, the respondent submits that the evidence was not clear as to whether the complainant would have been in a position to see the tattoo (which depended on how far the appellant’s pants were pulled down).  More significantly, the respondent submits that it should be uncontroversial that a child, who is being molested and orally raped, would not pay attention to anything other than the offender’s penis.  That submission is accepted.

10. There were internal inconsistencies in the complainant’s evidence, as to how he left the appellant’s house after the first incident (and inconsistencies as between the complainant’s evidence, of being dropped home in a blue car, and his mother’s evidence, of him being dropped home in a white car).
11. The complainant told police he was wearing a blue shirt that had been ripped when the appellant grabbed him.  He described the shirt as having a pocket, but the photograph of the shirt did not show a pocket.  It was also said the mother’s evidence as to the timing of the rip to the shirt was inconsistent, suggesting it must have occurred before the abuse allegations arose.

The respondent submitted the matters referred to in (d), (g), (j) and (k) above concerned minor matters of detail, which would not lead a jury to reject the complainant as a witness of truth.

12. There were inconsistencies in the complainant’s evidence about the third incident, when he said he was given a drink of some kind (described as cordial) which made him fall asleep.  To the police, the complainant described the appellant making him masturbate his penis at the time he had the drink.  But when questioned in court, he said he fell asleep after he had the drink (and did not mention the allegation of masturbating the appellant).  Also, in cross-examination, the complainant was not sure if this was the second or third time.

We would not regard this as demonstrating inconsistency.  The questions put to the complainant when he gave his evidence in court about the so-called “cordial” incident were very limited.

13. The complainant said he told his mother about being sexually abused after the “third time”, and that she did not believe him; but the mother said there was no occasion when the complainant told her he had been sexually abused and she did not believe him.  Also, the complainant did not initially tell his mother it was the appellant who had abused him.

The respondent accepted that the evidence about when the complainant told his mother he had been abused is difficult to reconcile, but submitted it was open to the jury to place limited weight on the inconsistencies, given that both the complainant and his mother had difficulties recalling some details.  In contrast, as the respondent submitted, there were important consistencies between the evidence of the mother and the complainant, in terms of the complainant’s “preliminary complaint” to her – including that he had been abused four times, and the description of three of the times.^[15]

14. There were inconsistencies in the complainant’s evidence as to whether the appellant’s partner, K, was at home, or not, during the offending.

The respondent submits that this is not correct, as the complainant’s evidence was clear that there was no one else present when he was raped.  That is accepted.

15. The complainant said he yelled out to his mother at the time when the appellant took him from the paddock, and his mother “looked at him” – but she had no recollection of this occurring.

As to this, the appellant’s submission does not accurately record the complainant’s evidence.  He told police that “I yelled out to Mum and then I saw her look out”.  He did not tell police his mother looked at him.

16. The complainant told police about a clock at the appellant’s house, which showed a date, but accepted in cross-examination that the clock did not have a date on it.

The respondent submits this evidence does not tell against the complainant’s credibility in a significant way, and it is open to conclude it simply reflected a faulty recollection.  The complainant was clear, at the time of giving his evidence in court, that the clock he saw did not have a date.

55. [55]
    The appellant also relied on other aspects of the evidence, which were relevant to the assessment of the complainant’s credibility, including that he had behavioural issues before the allegations of abuse, and had been suspended from school on a number of occasions on the basis of violent behaviour; he had been diagnosed with ADHD, and prescribed medication, which he stopped taking.  How these matters should be taken to adversely affect the credibility of a child describing sexual abuse was not explained.
56. [56]
    The appellant also submitted that some of the complainant’s allegations were simply implausible, for example, the complainant’s account of being taken from a paddock and “forcibly dragged a considerable distance” to the appellant’s house.  As to this, the complainant did not say he was “forcibly dragged”.  The complainant’s evidence was that the appellant “grabbed” him “and then he pulled me down the street, and like people were walking so I was just walked with him … like ‘cause I was … scared, like he looked at me like he was gonna … hit me … or whatever, and then I just walked with him… until we got to his house…”.  The use of the word “dragging” came from the barrister who appeared for the appellant at the time the complainant’s evidence was pre-recorded, on 12 October 2020.  The barrister used the phrase “dragging you or pulling you…”, and the complainant did clarify, in answer to a question in cross-examination, that he was not pulled along the street, but “in the paddock”.  Otherwise, the word “dragged” was used by defence counsel at the trial, in a question put to the complainant’s mother.
57. [57]
    The appellant submits that, taken together, the problems with the complainant’s evidence are of such a fundamental and concerning nature that, even with the benefit of having seen the complainant, a jury should have harboured doubt as to the appellant’s guilt.  He submits the complainant’s evidence was “internally and externally inconsistent”, changed in material respects, was implausible in some respects, and where there was the possibility of corroboration from other evidence or witnesses, that evidence contradicted, rather than supported, the complainant’s evidence.
58. [58]
    The respondent submitted that the complainant’s evidence should be considered having regard to the facts that he was a child aged 11 to 12 when the offences were committed, 13 when he spoke to police and 14 when he gave his evidence in court.  He was a vulnerable child, from a home marked by violence and drug use, telling police about things that, the transcripts reveal, he found deeply embarrassing and upsetting.  As already recorded, counsel for the respondent countered the appellant’s criticism of the 16 factors referred to above in a manner which shows that in some respects the appellant has misstated, or overstated the evidence in order to highlight an inconsistency, or in others that the inconsistencies are not of such significance as to undermine the credibility of the complainant.
59. [59]
    In relation to the “lack of corroboration” point, the respondent submitted that rather than finding the complainant’s evidence unreliable because it was inconsistent with the evidence of other witnesses in some respects, it was a case of the evidence of the other witnesses being inconsistent with the complainant’s, reflecting adversely on the reliability of those other witnesses.  The respondent submitted it was open to the jury to conclude the complainant was the credible and reliable witness, and that his mother, for example, may have been the unreliable one.  The evidence of TB (about the conversation with the appellant) was said to be a compelling piece of post offence conduct on the part of the appellant (noting that the fact of the conversation was not challenged by the appellant at the trial, although the purport of it was challenged to some extent).
60. [60]
    Overall, the respondent submitted that the evidence revealed that the complainant was a troubled and vulnerable boy who was exploited by the appellant through manipulation and deception for his own gratification.  The respondent submitted the complainant repressed the offending until it came out unexpectedly, in response to a homophobic slur from his brother.  Following that, the details were gradually extracted from him in daunting environments in a manner which is not unusual in the case of a child complainant.  In that context, the respondent submits that the inconsistencies highlighted by the appellant did not disturb the “ring of truth” that attended the complainant’s evidence.

The verdicts are not unreasonable

61. [61]
    Having undertaken an independent assessment of the whole of the evidence at the trial, and mindful of the applicable legal principles, we do not accept the appellant’s submission.  The jury had the advantage of seeing all the evidence, and can be taken to have applied their collective wisdom and life experience in evaluating the credibility of the complainant carefully in that context.  Such care is also apparent from the fact that verdicts were not able to be reached on some counts, reflecting the fact that where doubt was entertained it was given effect.  It is apt to conclude, in this case, that the jury may well have considered that the differences between the complainant’s evidence, and that of some of the other witnesses, reflected adversely on the other witnesses, rather than the complainant.
62. [62]
    The inconsistencies in the complainant’s evidence were meticulously drawn to the jury’s attention by defence counsel at the trial.  The trial judge gave the jury careful and clear directions, about the need to scrutinise the complainant’s evidence with care, and reiterated the closing submissions of both counsel on two occasions – first, at the end of the summing up, and then again after parts of the complainant’s evidence were replayed for the jury.  Having heard all the evidence, and with the benefit of clear and unassailable directions from the trial judge, the jury was satisfied of the honesty and reliability of the complainant, and accepted his evidence as proving the counts they were able to reach a verdict on.  The jury were entitled to do so.  By his arguments on this appeal, the appellant has not demonstrated that the weaknesses in the complainant’s evidence, such as they were, reduced the probative value of it in such a way that this Court ought 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.^[16]
63. [63]
    For those reasons, we dismiss the appeal.