R v HCW[2025] QCA 90

SUPREME COURT OF QUEENSLAND

1. [1]
   FLANAGAN JA:  I agree with Burns J.
2. [2]
   BURNS J:  On 27 September 2024, the appellant, HCW, was found guilty by a jury of one count of rape following a five-day trial in the District Court at Mackay. He appeals against that conviction on two grounds: first, that the verdict was inconsistent with acquittals returned with respect to other counts on the indictment; and, second, that the verdict was unreasonable and not supported by the evidence.

The trial

3. [3]
   The appellant faced an indictment charging five counts, as follows:

Count 1 –between 11 May 2020 and 15 September 2021 – rape;

Count 2 – between 5 October 2020 and 8 September 2021 – rape or, in the alternative, indecent dealing with a person with an impairment of the mind, under care;

Count 3 –between 5 October 2020 and 8 September 2021 – rape or, in the alternative, indecent dealing with a person with an impairment of the mind, under care;

Count 4 –between 31 July 2021 and 8 September 2021 – rape or, in the alternative, indecent dealing with a person with an impairment of the mind, under care;

Count 5 –between 31 July 2021 and 8 September 2021 – indecent assault.

4. [4]
   Count 1 was discontinued on 21 February 2024 and, after a successful no case submission at the trial, the jury were directed to return a verdict of not guilty in relation to count 2. Of the remaining counts, the appellant was acquitted of counts 4 and 5 (including the offence charged in the alternative for count 4) but, as the appellant now complains, he was convicted of count 3.
5. [5]
   The complainant for counts 3 and 4 was the same. I shall refer to her as MRC. At the time of the offending alleged to constitute those counts, the appellant was in a relationship with MRC’s mother. They, along with MRC’s three younger siblings lived together in a suburb of Mackay. MRC was then 16 years of age but, according to the evidence of a clinical psychologist who was called as part of the Crown case, Dr Keen, MRC suffered from a moderate intellectual disability as well as autism. She had a mental age of about seven years at the time when count 3 was alleged to have occurred.
6. [6]
   Count 5 concerned a different complainant. I shall refer to her as TNQ. She was a friend of MRC. At the time of the offending alleged to constitute that count, TNQ was 17 years old and, like MRC, suffered from both a moderate intellectual disability and autism. Dr Keen gave evidence to the effect that TNQ had a mental age of between six‑and‑a‑half and seven years at the time of the alleged offending.
7. [7]
   The conduct constituting count 3 was particularised to be an act of digital penetration of MRC. This offence was alleged to have occurred in MRC’s bedroom on an occasion when the appellant “wrapped [MRC’s] legs around his body”. Count 4 was also particularised as an act of digital penetration of MRC but, on this occasion, the act was alleged to have occurred when the appellant, MRC and TNQ were together in the same bed. Count 5 was particularised as having occurred on the same occasion as count 4, with it being alleged that the appellant “rubbed [TNQ’s] vaginal or vulval area”.
8. [8]
   The evidence from MRC and TNQ was pre-recorded, and those recordings were admitted pursuant to s 93A of the Evidence Act 1977 (Qld). There were three separate recordings for MRC – on 8 September 2021, 14 September 2021 and 16 October 2021 – and one for TNQ – on 15 September 2021. Both complainants were cross-examined by the appellant’s trial counsel ahead of the trial and that evidence was admitted pursuant to s 21AM of the Evidence Act. In addition to Dr Keen, the other witnesses called at the trial were a teacher’s aide who knew both complainants as students and took a complaint from TNQ on 9 September 2021, MRC’s mother who was married to the appellant between 2019 and 2021 and gave evidence regarding the level of assistance MRC required, and TNQ’s mother who gave evidence regarding the level of assistance TNQ received.
9. [9]
   MRC’s accounts regarding the alleged offending slowly emerged over the course of her three s 93A recordings. It is plain she was reluctant to say anything that might cause trouble for the appellant whom she regarded as her “step‑dad”.
10. [10]
    During the 8 September 2021 recording, MRC asked whether she was in trouble and, after being reassured she was not, the interviewing police officer asked her whether she had “been telling people at school” about “things happening with your step‑father”. MRC said she had told her “best friend [TNQ] about what’s been happening”. MRC then spoke of “cuddles” which she received from the appellant which she described as “normal”. Later in the recording, MRC said that the appellant was a “nice step-father”.
11. [11]
    During her second s 93A recording on 14 September 2021, MRC referred to the appellant as “nice”, “loving” and “kind” and repeated that she received “cuddles off him”. She again described these as “normal cuddles”. MRC was then asked whether there were any “cuddles that aren’t normal?” She said a cuddle would not be normal if someone touched her “down below”, referring to her “private parts”. This led to MRC again asking the police if she was in trouble. After being told that the police were there to “check that [she was] okay”, MRC agreed she had spoken to TNQ about the appellant. She said TNQ was “spreading rumours”. MRC was asked whether TNQ had said that the appellant “touched [her] inappropriately”, to which MRC responded, “Yeah, but cause I, I’ve never like felt it”. She said she hated being lonely and wanted someone to treat her with love. When asked if the appellant had ever touched her inappropriately, MRC said he had but added that this had not occurred “in a while”. When MRC was asked what the appellant had done, she said he “decided to come and lay with me and get cuddles off me” and “he would come and play with down below”. She then immediately asked whether her saying this would get the appellant into trouble, because she did not want that. Further questioning ensued about inappropriate touching. MRC said she could not remember the “first time” because it had been a “long time” since the appellant had “done it”. When asked about the time she “best remembered” this happening, MRC said she had been in bed with the appellant and her friend, TNQ. She was laying between them. She said her mother told her to lay in the middle of the bed because TNQ “didn’t like gettin’ touched”. MRC said this happened “probably like a month or so” ago and that she felt the appellant’s “arm going, leaning towards [TNQ]”, but she did not see the appellant touch TNQ. TNQ told her about it later. MRC was then asked about the appellant touching her. She again said that this had not happened “in a while”. She said that if she did not want the appellant “touching” her, she would get him to rub her back or play with her hair. When pressed by the police to recall more detail, MRC said she could not do so because of a “rule at home, like whatever happens at home always stays at home”. MRC was asked how the appellant touched her. She answered that he “puts his finger in [her] – I’m not sure what the hole is”. When the police asked about the appellant putting his finger in her “hole”, she said he “just plays with it”. She said another name for the “hole” was “vajayjay” or “vagina”. She had difficulty explaining what the appellant was doing but appeared to demonstrate a finger moving in a circular motion. She knew this “hole” was used to “give birth”. She could not remember the last occasion when this happened, but said she was the same age as she was at the time of the recording (16 years). MRC remembered it happening in her bedroom at her mother’s house. This occurred two or three times but not for a while. She told TNQ about the appellant touching her but did not tell her mother because the appellant told her not to do so.
12. [12]
    MRC’s final s 93A recording was made on 16 October 2021. There were questions about the occasion when MRC was in bed with TNQ and the appellant. MRC again said she felt the appellant’s arm reach across her towards TNQ. She thought the appellant was also using his right hand “playing with” her or “putting his finger” in her. She said, “I think he was playing with myself” and “I think he was putting his finger um, I’m not sure what the word for it is”. MRC then asked whether she could tell the police about “another night” that she remembered. She said the appellant came into her bedroom and gave her “cuddles”. MRC said the appellant then “went out for a smoke” and later came back into her room. He was trying to “snuggle up” to her. She got up from the bed and went out of her bedroom to tell her mother that she could not sleep. Towards the end of the recording, MRC remembered the appellant grabbing her legs and wrapping them around his body “so he could do it”. She appeared to demonstrate some movements and said that she was trying to tell him not to do it “without showing him”.
13. [13]
    When cross-examined ahead of the trial, MRC agreed she had difficulty remembering things that happened to her, and that she often said her “brain is going crazy”. She agreed she was “forgetful” and often implored herself out loud to “think”. She said it helped if someone suggested something to her about a past event. She agreed that, when she talked to police about the appellant touching her vagina, she could be wrong about that, and that she could be “actually remembering a past event, something that happened with someone else”. She agreed she lived with TNQ in the week between her first and second s 93A recordings and that, during this time, TNQ reminded her about things to do with the appellant. Importantly, MRC said with respect to the conduct alleged to constitute counts 4 and 5 (when the appellant was alleged to have been in bed with both MRC and TNQ) that she had no memory of this until prompted by TNQ. She agreed that so far as “this event in the bed” was concerned, this was “only something that [she] learned about from [TNQ]”. She said, “[TNQ] told me that he touched her”. She agreed that “other than [TNQ] telling [her], [she] had no memory of that event at all”. On the other hand, so far as the conduct constituting count 3 was concerned (described as “an event where your legs were wrapped around” the appellant), MRC said this occurred in her “room at [her] mum’s old house” and, when it was suggested she may have been retrieving “jumbled memories in [her] memory bank” and that what she told the interviewing police officer was the “wrong thing”, MRC replied, “No”. When it was suggested to her that, with “all these memories of events … just floating around in your brain” and in her “trying to make sense of them, she might be wrong” about what she said, MRC twice said, “No”.
14. [14]
    After a break in her cross-examination for a few days, MRC returned for further questioning about the event when her “legs had been wrapped around” the appellant (count 3). After agreeing that the first time she made mention of that occurrence was during her last s 93A recording, MRC disagreed that she had not remembered it happening before then. However, she agreed that her recollection was helped by a conversation she had with TNQ. It was put to her that she was “re-creating memories or re-creating events from memories that have happened to [her] in the past” and now “telling those stories as if they were” the appellant. MRC replied, “Yes. But … he did touch me. … not lying about that.”
15. [15]
    In her s 93A recording made on 15 September 2021, TNQ gave an uncertain account regarding the conduct relied on by the Crown to support count 5. Although quick to make mention of the appellant behaving inappropriately towards her, she told the police that he reached his “arm over towards [her] lower parts” when she was sleeping. This, she said, occurred when the appellant was in bed with her as well as MRC. She added that MRC “caught him reachin’ his hand over towards [TNQ’s] lower part and she felt him doing it to [TNQ] while she was asleep”. She claimed to wake up during the night “with him doin’ it to me”. A little later in the recording, she said although she “never felt [the appellant] doin’ it” she heard MRC’s voice “saying stop”. She then got out of bed and told MRC’s mother what happened. She said that MRC’s mother then “went and got [the appellant] out of the room”. When questioned further about what she could recall the appellant doing, TNQ said the appellant placed “his hand up the hole thing” and left it there for “roughly half an hour to an hour”. She confirmed that “his hand was on [her] that entire time”.
16. [16]
    When cross-examined in advance of the trial, TNQ agreed she had difficulty remembering things. She also agreed she had to “replay things over and over in her mind” and said that, when she does, the detail gets better. It was put to her that the account she gave police in support of count 5 was an attempt by her to re-create memories and to fill gaps in her memory. She denied this. TNQ confirmed that the appellant had touched her on her vagina “for about half an hour to an hour in the bedroom”. It was put to her that the appellant had not touched her on the vagina at all, but she disagreed.
17. [17]
    Lastly, as already mentioned, MRC’s mother gave evidence at the trial. She recalled TNQ sleeping over at her home on two occasions. When cross-examined, she was asked whether, on either of those occasions, TNQ told her that the appellant had touched her inappropriately. She said TNQ had not. Furthermore, MRC’s mother agreed that, had TNQ mentioned anything of that sort, she would have taken action by contacting the police or Child Safety.

Were the verdicts inconsistent?

18. [18]
    The legal principles which bear upon the proper evaluation of a ground of appeal where it is said the verdicts of the jury were inconsistent, one with the other, were summarised by Morrison JA (with whom Sofronoff P and McMurdo JA agreed) in R v Fanning:^[1]

“In MacKenzie v The Queen, Gaudron, Gummow and Kirby JJ held that the test where inconsistency is alleged is one of ‘logic and reasonableness’:

‘… if 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. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.’

Various matters of principle have been settled about the assessment by an appellate court of the issue of inconsistent verdicts. They include:

1. the appellate court must be persuaded that the performance of the jury’s duty has been compromised by verdicts which are an unacceptable affront to logic and common sense, or which suggest confusion in the minds of the jury, or a misunderstanding of their function, or an uncertainty about legal differences between the offences, or a lack of clarity in the instruction on the applicable law;

2. as the test is one of logic and reasonableness, the question is whether a reasonable jury, who had applied their minds properly to the facts in the case, could have arrived at the various verdicts;

3. if there is a proper way by which an appellate court can reconcile the verdicts, appellate courts should accept the jury as having performed its function and be reluctant to accept a submission that verdicts are inconsistent;

4. different verdicts may be a consequence of a jury correctly following instructions to consider each count separately, and to apply the requirement that all elements must be proved beyond reasonable doubt;

5. different verdicts will show the required inconsistency where a verdict of acquittal necessarily demonstrates that the jury did not accept evidence which needed to be accepted to lead to the other verdict of guilty;

6. a jury may decide that it would be oppressive to convict on all charges and give a ‘merciful verdict’;

7. a jury might find the quality of a crucial witness’s evidence variable, even though it is accepted as generally truthful; some aspect of the evidence might point to faulty recollection on some points, or exaggeration on others, or an inherent unlikelihood about some aspect of the evidence, all of which casts doubt on the accuracy in those respects, but not of the witness’s general honesty;

8. in some cases it is possible that in respect of some counts there might be contradictory evidence which does not apply to other counts, and thus explains the variation in the verdicts; and

1. it may be in some cases that the different verdicts are explicable on the basis that there was corroboration in respect of some counts, but not others.” [citations omitted]

19. [19]
    It is therefore for the appellant in this case to establish that the verdict of conviction on count 3 when taken with the verdicts of acquittal on counts 4 and 5 were an unacceptable affront to logic and common sense or suggest, relevantly, that the jury compromised their duty, or were confused or misunderstood their function.^[2] The question is whether a reasonable jury, having applied their minds to the facts of the case, could have been satisfied beyond reasonable doubt as to the truthfulness and reliability of MRC’s evidence with respect to count 3, whilst not being so satisfied with her evidence in respect of count 4 or the evidence of TNQ in respect of count 5.
20. [20]
    For the appellant, it was contended that the case in support of count 3 was based solely on the evidence of MRC and, further, that her evidence in that regard was “no stronger than her evidence in relation to counts 4 and 5”. The point was made that for both counts 4 and 5 there was “some corroboration”, both offences having allegedly been committed in the presence of the other complainant, but for count 3 there was no such support. It was also contended there was “no explanation why after rejecting [MRC] in relation to [count 4] she could be accepted in relation to [count 3]”, and various features of her overall account were singled out in an attempt to make good that argument.
21. [21]
    Whilst it was certainly the case that the jury’s satisfaction regarding the truthfulness and reliability of MRC’s account regarding the commission of count 3 depended solely on the evidence which MRC gave in this respect, I do not accept that her evidence on count 3 was no stronger than her evidence in support of count 4 (as complainant) and count 5 (as, perhaps, a corroborator). To the contrary, there was a clear difference in the quality of her evidence supporting count 3 and her evidence supporting counts 4 and 5.
22. [22]
    In that regard, the evidence MRC gave concerning the acts constituting count 3 was quite detailed in comparison to the limited account she gave with respect to count 4. Moreover, in her final s 93A recording, MRC said in relation to count 4 that she thought the appellant had been “playing with” her before she felt his arm reach over towards TNQ. She also agreed when cross-examined she had no memory of this occurrence until prompted by TNQ. In contrast, the spontaneous way in which MRC volunteered her account to the police of the conduct making up count 3, together with the detail she supplied with that account, must have struck the jury as a happening which she distinctly recalled. It was also an event which, when challenged more than once in cross-examination about its occurrence, MRC consistently affirmed. On the other hand, the account MRC gave in support of count 5 was limited to feeling the appellant’s arm reach across her. She made it plain that she did not see what, if anything, then occurred. Indeed, MRC said of “this event in the bed”, that it was “only something that [she] learned about from [TNQ]”. Likewise, the feature that TNQ offered some corroboration for count 4, whereas count 3 stood alone, makes no difference to this analysis because the jury obviously entertained a doubt about the accuracy of TNQ’s evidence. 
23. [23]
    The acquittal on count 5 really adds nothing to the argument in support of this ground of appeal. This is primarily because the complainant was, of course, different. Also, as just discussed, any support for TNQ’s account to be derived from MRC’s evidence was thin at best. Importantly, the jury’s assessment of TNQ’s evidence in support of count 5 would necessarily have been affected by the concession she made that she had been asleep and “never felt [the appellant] doin’ it”. Instead, she heard MRC’s voice “saying stop”. Her account was also implausible in one important respect – the period of time during which she said she was assaulted – and the evidence she gave regarding the making of an immediate complaint to MRC’s mother was at odds with the evidence of MRC’s mother.
24. [24]
    It follows that there was a sound basis for the jury to be persuaded beyond reasonable doubt about the truthfulness and reliability of MRC’s evidence about count 3, while at the same time entertaining a doubt about the reliability of her evidence on count 4 and the evidence of TNQ in respect of count 5.
25. [25]
    This ground fails.

Was the verdict on count 3 unreasonable or insupportable?

26. [26]
    A ground of appeal that the verdict on a particular count was unreasonable or cannot be supported having regard to the evidence requires this Court to consider the whole of the evidence before the jury, and decide whether it was open to the jury as a question of fact to be satisfied beyond reasonable doubt about the guilt of the appellant on that count.^[3] In the context of this case, that means it is necessary to undertake a review of the whole of the evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt about the truthfulness and reliability of the account which MRC gave regarding the essential features of acts comprising count 3.
27. [27]
    Having undertaken such a review, it was certainly open to the jury to be satisfied about those matters, and to the standard required. For the reasons already expressed, and in contrast to the limited account she gave in support of count 4, MRC gave an account in support of count 3 which was compelling in the way in which it eventually emerged, the detail which then accompanied it and her refusal to depart from it when pressed in cross-examination. Her account was internally consistent and uncontradicted by any other evidence. MRC was, from the outset, reluctant to say anything that might get either her or the appellant into “trouble”, and that was especially so when faced with direct questions from the interviewing police. However, what MRC said in relation to count 3 did not emerge under pressure of questioning; it was volunteered by her in the final s 93A recording. The jury were entitled to rely on the accuracy of that evidence in reaching their conclusion beyond reasonable doubt that the appellant was guilty of count 3.
28. [28]
    This ground also fails.

Disposition

29. [29]
    There being in my opinion no substance to either ground of appeal, the appeal must be dismissed.
30. [30]
    COOPER J: I agree with Burns J.