R v CDN[2025] QCA 19

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Gotterson AJA.
2. [2]
   GOTTERSON AJA:  The appellant, CDN, was tried on a nine-count indictment before Judge Sheridan in the District Court at Kingaroy.  The trial occupied four days from the 16^th to 19^th of April 2024 inclusive.  The counts alleged sexual offending by the appellant at Cherbourg.
3. [3]
   For Counts 1 and 2, the offending was alleged to have been against a male child on a date unknown between the 10^th of April 2015 and the 11^th of April 2017.  The jury were directed to acquit on those counts on the third day of the trial.
4. [4]
   Counts 3 to 9 concerned alleged offending against another male child whom I shall refer to as “the complainant”.  Count 3 alleged offending against s 229B(1) of the Criminal Code (Qld) (“the Code”) in that the appellant maintained an unlawful sexual relationship with the complainant between the 20^th of November 2019 and the 24^th of June 2021 in the course of which he raped the complainant.  It was further alleged that the offence was a domestic violence offence in accordance with s 564(3A) of the Code.
5. [5]
   Counts 4, 5 and 6 related to offending alleged to have taken place at the public toilets at the Cherbourg cemetery on a date unknown between the 20^th of November 2019 and the 21^st of November 2020.  Each of these counts alleged rape of the complainant by the appellant in contravention of s 349 of the Code.  The allegations were that the appellant inserted his penis into the complainant’s anus (Count 4) and into his mouth (Count 5); and that he inserted his tongue into the complainant’s anus (Count 6).
6. [6]
   Counts 7, 8 and 9 also alleged rape of the complainant by the appellant.  These rapes were alleged to have occurred on the 23^rd of June 2021 at residential premises in Cherbourg.^[1]  The particulars of these counts alleged that the appellant inserted his penis into the complainant’s mouth in contravention of s 349(2)(c) of the Code (Count 7); that he inserted his tongue into the complainant’s anus in contravention of s 349(2)(b) of the Code (Count 8); and that he had carnal knowledge of the complainant by inserting his penis into the latter’s anus in contravention of s 349(2)(a) of the Code (Count 9).  All of the rape offences were also alleged to have been domestic violence offences.^[2]
7. [7]
   The appellant was 27 years old at the time of the offending alleged in Counts 7, 8 and 9.  The complainant was eight and a half years old.
8. [8]
   At trial, the jury found the appellant guilty on Count 7 and acquitted him on Counts 8 and 9.  They also acquitted him on Counts 4, 5 and 6.  The appellant’s sole ground of appeal against his conviction is that the jury’s verdict in respect of Count 7 was inconsistent with their verdicts on Counts 8 and 9 and ought to be set aside.
9. [9]
   Consideration of this ground of appeal necessitates a review of the evidence before the jury relevant to these three counts.  Before turning to aspects of that evidence I note that the subject premises was a house where the complainant and his mother resided.  The appellant is the mother’s cousin.  The complainant would refer to him as “uncle”.

Complainant’s evidence

10. [10]
    The complainant was taken to Cherbourg hospital by members of his family on the evening of 24^th of June 2021, the day after the alleged offending at the residence.  He was interviewed by police at the hospital between 9.00 pm and 9.41 pm.  A recording of that interview was tendered pursuant to s 93A of the Evidence Act 1977 (Qld).^[3]  A transcript of it was marked for identification.
11. [11]
    In the course of the interview, the complainant said that he and his younger brother, D, then six years old, were at the premises with the appellant.  His mother was away drinking at the time.^[4]  According to the complainant, “[the appellant] said come here and then I went to him and he went in my mum's room and he did all the gay stuff to me”.^[5]
12. [12]
    Early in the interview, the complainant had said that the appellant had made him put his (the complainant’s) mouth on his (the appellant’s) “private part”.^[6]  He also said that the appellant put his tongue in his “butt”.^[7]
13. [13]
    The complainant was then taken through events in more detail.  He agreed that he had said that the appellant made him put his mouth on the former.^[8]  Then the complainant said: “he put his private part in mine”.^[9]  He clarified that he meant that it was in his “butt”.^[10]  The complainant’s mother returned home and the appellant stopped.^[11]  The complainant ran up the road to his “nan’s” house because he was scared.^[12]
14. [14]
    When asked to repeat everything that had happened that day, the complainant stated that his mother was drinking “somewhere else” and his uncle had been cooking lasagne and smoking “yarndi”.  The appellant stopped that and put his “private part” into the complainant’s mouth.  This, he said, happened in the bathroom.^[13]  Then he put his tongue into the complainant’s bottom and his “private part” into his “butt” as well.^[14]  When asked whether he was then clothed, the complainant said that the appellant made him pull down his shorts and underpants.^[15]  He also said that it was on his mother’s bed that the appellant put his “privates” in his “butt”.^[16]
15. [15]
    The complainant stated “when I do a poo it hurts too”.  He added that he had not showered since the alleged offending on the previous evening.^[17]
16. [16]
    The police re-interviewed the complainant six days later on the 30^th of June 2021.  A recording of that interview was also tendered.^[18]  He repeated that his mother had been out drinking but, on this occasion, he said that it was the appellant who pulled his (the complainant’s) shorts down and put his private part “at the back” which, he agreed, meant his “butt”.  Next, the appellant made the complainant put his mouth on the appellant’s “private part”.  Then, the appellant put his tongue into the complainant’s “butt”.  This all happened on the bed in his mother’s room.  It ended when she came home.^[19]  The complainant further stated that it was on another day when his mother had not been drinking that the appellant had put the complainant’s mouth onto the former’s “private part” in the bathroom.^[20]
17. [17]
    The complainant gave pre-recorded evidence pursuant to s 21AK of the Evidence Act.  He was cross-examined by defence counsel.  During cross-examination, he said that he, in fact, had had a shower on the day that he was first interviewed by police and that he did so before going to Cherbourg Hospital.^[21]  He said that the “last” (that is to say, most recent) occasion of offending before the first police interview was in his mother’s room in the afternoon when D was also home “on the couch outside” that room.^[22]
18. [18]
    According to his evidence in cross-examination, the appellant beckoned the complainant to follow him with a hand signal.  They entered the mother’s room and closed the door.  The appellant first touched him on his “butt” with his “private part”, putting the latter into the former.  Then he put the complainant’s mouth on his “private part”.  He also put his tongue up the complainant’s “butt”.^[23]
19. [19]
    Further, he said that the appellant stopped when he heard the complainant’s mother return home and ask D loudly where the complainant was.  At that point, the appellant’s “private part” was in his “butt”.^[24]  They both then pulled their pants up and left the bedroom.^[25]  He said that his mother asked what he was doing in the room and grabbed at him.  He then ran up the road to his “nan’s”.^[26]

Other evidence

20. [20]
    The complainant’s younger brother, D, was also interviewed by police on the 30^th of June 2021.^[27]  He, too, gave evidence pursuant to s 21AK.  During cross-examination,^[28] D said that he saw the complainant in his mother’s bedroom through a partly open door.  The appellant was standing next to the complainant.  He confirmed, as he had told the police,^[29] that the appellant touched the complainant “on his private parts”.  The complainant was clothed at the time and the touching was on the “outside”.^[30]  D also said that after this, he saw the appellant punching and hitting the complainant.^[31]  It was then that his mother came home.
21. [21]
    The complainant’s grandmother gave preliminary complaint evidence of a conversation she had with the complainant at about 3.30 pm on the 24^th of June 2021.  The complainant agreed that the appellant had put his “budoo” (penis) into the complainant’s “bum”.^[32]  He also agreed that it hurt when he did “caca”.^[33]
22. [22]
    The complainant’s mother also gave evidence.  She said that she had returned home after having a few drinks.  D was there.  She saw the complainant on the bed in her room.  The appellant was also in the room chopping some yarndi and sitting near the cupboard.^[34]  She asked the complainant if he was alright.  She was speaking loudly.  The complainant became scared and ran off.^[35]
23. [23]
    Significantly, the mother was pressed in cross-examination to the effect that she had met the appellant in the street that afternoon and that they had gone to the house together; that is to say, that the appellant had not been there with the complainant and D during her absence.  She rejected that version of events.^[36]
24. [24]
    Preliminary complaint evidence was also given by the complainant’s aunt.  She said that the complainant told her on the 24^th of June 2021 that the appellant had touched him on the front and back whilst pointing to his “private parts”.^[37]  Such evidence was also given by a registered nurse at the Cherbourg Hospital who was on duty when the complainant and his family arrived there that day.  The complainant told him that the appellant had asked the complainant “to touch genitals” and that “there was a mention of a penis in the mouth and bottom”.^[38]
25. [25]
    A specialist paediatrician examined the complainant at Toowoomba Hospital on the 25^th of June 2021 and gave evidence at the trial.  He said that there was no bruising on or around the complainant’s penis or testes and that his buttocks and anus were normal,^[39] as was the complainant’s mouth.^[40]  The paediatrician expressed the opinion that the lack of obvious injury did not exclude a sexual assault.^[41]
26. [26]
    Admissions were made during the course of the trial.  They were documented in Exhibit 24^[42] and concerned DNA profiles provided by swabs taken from the complainant and the appellant respectively on the 25^th of June 2021.  The admissions included that swabs taken from the complainant’s perianal region, anal canal and mouth indicated the presence of one contributor only (assumed to be the complainant) and that swabs taken from the base, shaft and tip of the appellant’s penis also indicated the presence of one contributor only (assumed to be the appellant).
27. [27]
    The appellant neither gave nor called evidence.

Appellant’s submissions

28. [28]
    In summary, the appellant submitted that there was no qualitative distinction between the evidence concerning Counts 7, 8 and 9 respectively as might account for the different verdicts on them.  The complainant spoke of each of the three separate instances at both police interviews and in his cross-examination.  The medical evidence did not indicate that the Count 7 instance was more likely to have occurred than the other two instances.  Nor did the DNA evidence or the evidence of any of the other witnesses, do so.
29. [29]
    Taken as a whole, the appellant further submitted, there were no aspects of the evidence whereby one of the three instances could be differentiated from the others by reason of exaggeration, inherent unlikelihood, inaccuracy or mistake such as could explain the difference in the verdicts.  As well, there were no circumstances of corroboration or contradictory evidence that could differentiate between the counts.  Lastly, it was submitted, the one guilty verdict could not be categorised as a merciful one in view of the acquittals on all other counts.

Applicable principles

30. [30]
    The topic of inconsistent verdicts was considered by this Court in R v CCX.^[43]  Drawing upon the joint judgments of Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen^[44] and of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen,^[45] Kelly J (with whom Mullins P and Boddice J (as his Honour then was) agreed) observed:

1. “[53]
   Where alleged inconsistency is said to arise with jury verdicts on different counts, the court must apply a test based upon logic and reasonableness, which respects the function of the jury.  It is not the role of an appellate court to substitute its opinion of the facts for one which was open to the jury.
2. [54]
   In MacKenzie v The Queen, the joint judgment said:

‘…[I]f there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted.’

1. “[55]
   The respect which an appellate court must afford the function of the jury is emphasised in the following passage in M v The Queen:

‘…the question which the 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. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.’

1. [56]
   The appellant bore the onus of establishing that the verdicts of acquittal and conviction were an unacceptable affront to logic and common sense and strongly suggestive of, relevantly, the jury having compromised its duty, having been confused or misunderstanding its function.”^[46]

31. [31]
    More recently, Dalton JA of this Court said in R v BEN:^[47]

“The High Court in MacKenzie v The Queen cited English authority to the effect that an appellant wishing to have a conviction set aside on the grounds of inconsistency, ‘must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion’.  Inconsistency of verdicts is thus a species of unreasonable verdict which, if established, will result in an appeal court quashing an inconsistent guilty verdict and usually, but not invariably, entering a verdict of acquittal.  Consistently with the idea that there is no appeal against a jury verdict of acquittal, it is assumed that where inconsistency is established, the jury verdicts of acquittal are the correct verdicts, and it is the guilty verdicts which must be set aside.”^[48]

32. [32]
    An instance of inconsistent verdicts on counts of rape can be found in the decision of this Court in R v Bond.^[49]  In that case, the complainant gave a consistent, specific and detailed account of a single, uninterrupted episode in which he was orally and anally raped.  The appellant was found not guilty on the count alleging the former, but guilty on the count alleging the latter.  Boddice J (as his Honour then was) (with whom Sofronoff P and McMurdo JA agreed) said:

“A consideration of the evidence of the complainant, and of the other evidence called at trial, provides no logical or reasonable basis for the jury to have drawn a distinction between the reliability and credibility of the complainant’s account in respect of the act of anal intercourse (Count 2) and the reliability and credibility of his account in respect of the act of oral intercourse (Count 3).”^[50]

His Honour regarded the different verdicts as “an affront to logic and common sense”.^[51]

Discussion

33. [33]
    I would accept the appellant’s submission that none of the verdicts on Counts 7, 8 and 9 was a merciful one.  Plainly, that was not the case for the guilty verdict on Count 7.
34. [34]
    However, for reasons that I will explain, I consider that evidential consideration rationally justified the different verdicts on these three counts.
35. [35]
    The offending alleged in Counts 8 and 9 differed in one very significant respect from that alleged in Count 7.  Counts 8 and 9 alleged penetration of the complainant’s anus by the appellant’s tongue and penis respectively.  For that to have occurred, the clothing around the complainant’s anal area would have to have first been removed.  By contrast, it was not necessary for the offending alleged in Count 7 for any of the complainant’s clothing to have been removed.  That offending involved insertion of the appellant’s penis into the complainant’s mouth.
36. [36]
    It would have been apparent to the jury that to convict on either Count 8 or Count 9, they would have to be satisfied beyond reasonable doubt that the complainant’s clothing around his anal area was first removed.  In that respect, the complainant said in his first interview with police that the appellant made him pull down his shorts and underpants.  However, when re-interviewed, he said that it was the appellant who pulled down his shorts.  Thus there was conflict within the complainant’s own evidence as to how the clothing around his anal area was removed.
37. [37]
    Further, the jury may well have found one important aspect of the complainant’s evidence with respect to the Count 9 allegation difficult to reconcile with the mother’s evidence.  According to the complainant, when his mother returned home and he heard her ask loudly where he was, the appellant’s penis was inside his anus.  The mother’s evidence, however, was that when she entered her room, she saw the complainant on the bed and the appellant sitting near the cupboard.  They were not on the bed together.  Moreover, she did not testify that the complainant was in any respect unclothed.
38. [38]
    Having regard to these specific aspects of the complainant’s evidence and, more generally, to his young age, the jury may well have looked to evidence of others for reassurance as to the reliability of the complainant’s evidence.  The evidence of D has significance in that respect.  He said in cross-examination that he saw the complainant and the appellant standing next to each other through the partly-open door of the mother’s room.  The complainant was clothed.  The appellant touched the complainant’s “private parts” above his clothing.  This evidence did not support the complainant’s account that the clothing around his anal area had been removed so as to permit the offending alleged in Counts 8 and 9 to occur.
39. [39]
    The members of the jury were attentive to the evidence, particularly that of the complainant.  During their deliberations, they asked for the police interviews of him and his pre-recorded evidence to be replayed to them.
40. [40]
    In my view, the evidential considerations to which I have referred differentiate the quality of the totality of the evidence in relation to the Count 7 allegation, on the one hand, and that in relation to the Counts 8 and 9 allegations on the other.  They are apt to explain why, logically, the jury being satisfied beyond reasonable doubt on Count 7 were not satisfied to that degree on the other two counts.
41. [41]
    I would add that the jury may also have considered that the absence of the appellant’s DNA from the complainant’s anal area was more telling than its absence from his mouth, notwithstanding the complainant’s evidence that he had showered before he was swabbed.  However, there was no medical or scientific evidence to the effect.

Disposition

42. [42]
    For these reasons, I conclude that the appellant has not made out his ground of appeal.  His appeal should therefore be dismissed.  I would propose the following order.
43. [43]
    Order

1. Appeal dismissed.

44. [44]
    HENRY J:  I agree with Gotterson AJA.