R v LBH[2025] QCA 97

SUPREME COURT OF QUEENSLAND

1. [1]
   BODDICE JA:  On 14 May 2024, a jury found the appellant guilty of one count of maintaining a sexual relationship with a child.
2. [2]
   On the same date, the appellant was sentenced to imprisonment for four years, suspended after serving imprisonment of two years, for an operational period of four years.
3. [3]
   The appellant appeals his conviction, on four grounds.  First, that the verdict of the jury was unreasonable and unable to be supported by the evidence.  Second, that the trial judge erred in failing to provide a direction consistent with s 132BA of the Evidence Act 1977 (Qld).  Third, that the trial judge erred in failing to provide a direction on the significance of the complainant’s access to transcripts of her police interviews and her evidence in the first trial.  Fourth, that the trial judge erred in failing to adequately direct the jury as to the use of evidence of preliminary complaint.

Indictment

4. [4]
   The indictment alleged that between 4 May 2010 and 5 May 2013, the appellant, being an adult, maintained an unlawful sexual relationship with a child under 16 years.
5. [5]
   That count was particularised as maintaining an unlawful sexual relationship which included more than one of any of the following acts:–

   1. touching the complainant on her breasts;
   2. rubbing his penis against the complainant’s vagina;
   3. pressing his penis against the complainant’s buttocks;
   4. putting his tongue and/or mouth on the complainant’s vagina;
   5. touching the complainant’s vagina over and underneath her clothing;
   6. rubbing a lubricant on the complainant’s vagina; and
   7. inserting the tip of his finger inside the complainant’s vulva and/or vagina.
6. [6]
   It was admitted at trial that the complainant was born in 2003.  Accordingly, she was aged between seven and 10 years at the time of the commission of the offences.  It was also admitted that the appellant was born in 1948.  Accordingly, he was aged between 62 years and 65 years at the time of the commission of the offence.
7. [7]
   It was admitted that the appellant was the complainant’s biological grandfather.
8. [8]
   The appellant elected to neither give, nor call evidence at trial.

Evidence

Complainant

9. [9]
   The complainant gave evidence that she was now 21 years of age and employed as a disability support worker, while studying criminal justice at university.
10. [10]
    The complainant said when she was growing up, she lived with her parents and four male siblings; two older and two younger.  The appellant was her grandfather on her father’s side.
11. [11]
    The complainant said that when she was at primary school, she lived about a seven minute drive from the appellant’s residence.  She would visit the appellant and his wife about once a week, on weekends.  Her parents would drive her to the house, drop her off and leave.  Sometimes the complainant’s siblings were with her.  On occasions she would stay overnight.  The grandparents were generally both at home.
12. [12]
    The complainant said that the grandparents lived in an old Queenslander.  It had two bedrooms.  There was a big yard with a shed.  Nearby was a chicken pen.  The appellant housed a boat in the shed.  The shed also had some couches, a mattress on the ground and a tool bench along its edge.
13. [13]
    The complainant said that there was a compartment in the front end of the boat with a seating area.  The appellant would take her into that compartment “very often”.^[1]  He would sit her down and place his hands on her body inappropriately, touching her skin.  He would place his hands on her chest and on her vagina.  He put the tip of his fingers in her vagina.  He would use both hands.  He also used his hands to take his pants off.  He would make the complainant sit on his lap, without any pants or underwear.  The appellant’s penis was never hard, but he rubbed it against her vagina.  The appellant also put his tongue on her.
14. [14]
    The complainant said the touching of her chest would occur every time the appellant took her into the compartment in the boat.  That was nearly every time she was at his residence.  She was about in year 2 when she started to attend the appellant’s house.  It went on for years.  When asked at what age it stopped, the complainant said, “I’d make an assumption of age nine”.^[2]  The complainant said that on each of the occasions that she was with the appellant in the compartment of the boat, the appellant did not say anything.  The complainant also did not say anything.
15. [15]
    The complainant said she had a memory of sitting down on the appellant’s leg with his pants around his ankles and he grabbed her hips and moved her front and back on his lap.  He would do this once a fortnight, for 20 minutes.  She had only one memory of the appellant putting his finger in her vagina.  That occurred outside of the compartment, whilst she was lying on her back on the floor of the boat.  The appellant was seated at the end of her legs.  She remembered a sharp pain when he put the tip of his finger in her vagina, for maybe a minute.  He moved it a little bit in a small flicking motion.  He stopped because it hurt.
16. [16]
    The complainant said that she also had a vague memory of the appellant doing things to her in his bedroom, when his wife was not at home.  The appellant’s wife was home when he did things to the complainant inside the boat.
17. [17]
    The complainant said that she remembered when she was in his bedroom, the appellant touched her body, hips, waist and vagina.  She was lying down on her back.  The appellant was lying next to her, on his side, facing her.  Sometimes she would be wearing clothes.  On those occasions, the appellant’s hand went underneath her clothes, on her vagina.  This would last for 20 minutes.  Nobody else was home on the occasions it occurred in the bedroom.  The occasions in the bedroom happened once a month.  It went on for years.
18. [18]
    The complainant said she remembered one occasion, when one of her older male siblings was also at the house.  The complainant was about eight or nine years of age.  The appellant had taken the complainant into the boat.  He started to touch her whilst he was sitting in the centre of the compartment, with his pants down.  He was rubbing her body against his penis.  Her sibling called out and climbed up onto the end of the boat.  The appellant quickly pulled up the complainant’s pants.  Whilst the appellant’s pants were still halfway down his thighs, the complainant said to the naked eye it did not look like anything was happening.  The complainant’s sibling asked the appellant to check something.  The appellant said he would come in a minute.  He asked the sibling to go away.  When he did, the appellant pulled his pants up and then went to see what her sibling wanted him to check.
19. [19]
    The complainant said on this occasion the appellant’s penis was not erect.  On some of the occasions that the appellant rubbed his penis on the complainant, there would be a little bit of an erection.  On no occasion was it fully erect.
20. [20]
    The complainant said she could not remember any other specific occasions in which the appellant touched her, either in the boat, or in his bedroom.  On just about every occasion, the appellant touched her breasts.  He would rub his penis against her vagina, maybe once a fortnight; it was not on every occasion.  He would also put his tongue on her vagina for a few minutes.  That happened once a fortnight.
21. [21]
    The complainant said the appellant would use a vial of Vaseline which he hid in a small pocket next to the seat on the boat.  He would grab that every time, scooping out a small portion.  He would rub it on the complainant’s vagina, for about two minutes.  He would also rub it on his penis.  The appellant would pleasure himself by masturbating with his hand, moving up and down on his penis.  The other hand would be on the complainant’s vagina.  It would last for about 20 minutes.  The appellant would use Vaseline every time.  He also had a tub of Vaseline in the bedroom.
22. [22]
    The complainant said she first spoke to police in 2020.  Prior to doing so, she had spoken to a number of people.  The first person she told was when she was 12 years of age.  It was her best friend, PH.  She had gone camping with PH’s family.  Late at night, PH said some things had happened to her in the past and the complainant said that she had similar experiences.  She told PH that her grandfather used to assault her, on his property, in his boat.  He touched her vagina.
23. [23]
    The complainant said she told another friend, YN, when the complainant was 13 years of age.  It was at a sleepover in YN’s bedroom.  They were talking about their past.  The complainant said her grandfather used to touch her, on his property.  The complainant did not go into specifics.
24. [24]
    The complainant said she told more friends from high school, on her 14^th birthday.  They had been drinking and it was late at night.  She mentioned to HJ and JM that she had been abused by her grandfather, when she was young.  He would take her into his boat and assault her.  She did not give any more details.
25. [25]
    The complainant said she moved out of home after confiding in her family.  She was about to turn 16.  She moved in with her current father, QR and his partner, SR.  She had a conversation with them before she moved in, about the appellant.  QR had noticed some behavioural issues.  He asked what it was like at home.  She told him that the appellant would take her into his shed, when she was a small child, up into his boat and would touch her vagina.  Maybe a month later, the complainant told SR that the appellant had sexually assaulted her, in the boat on his property.
26. [26]
    The complainant said there was never an occasion when the complainant assaulted her both in the boat and in the bedroom, on the same day.  The appellant did not touch her at any other location.  The touching stopped soon after her older sibling had walked onto the boat.
27. [27]
    In cross-examination, the complainant accepted that she participated in an interview with police on 30 November 2020, when she was aged 17 years and again on 12 August 2021, when she was aged 18 years.  On that occasion, she made further allegations about the appellant.
28. [28]
    The complainant accepted that prior to giving evidence, she had watched the audio-video recordings of those interviews.  She had also been given copies of the transcript of each interview, in a conference with the prosecutor, the week before the trial.  The prosecutor at that time, had given her the transcript of her evidence at an earlier hearing.  She accepted she was intimately familiar with each of the recordings and her previous evidence.  The complainant did not accept that the version she had given in court was “easily the most detailed version that you have given in this matter”.  The complainant accepted that she had never used the phrase “inner labia” in any of the police interviews, or in the previous evidence and that she had, in giving evidence that day, said there was movement “of a finger inside the inner labia”.  She also accepted that she had given much greater detail of where the Vaseline was hidden.
29. [29]
    The complainant accepted that she had never previously told police or given evidence that the appellant masturbated himself at any time.  She agreed that she had previously maintained that during the alleged offending the appellant had always been flaccid.  She accepted that she had not previously said that QR had noticed changes in her behaviour and asked questions about whether everything was okay at home.
30. [30]
    The complainant accepted that police had come to her school in July 2018, to speak to her about animal torture.  She stole some acid from school to torture animals.  The school was contemplating expelling the complainant.  The complainant accepted that she had a history of torturing animals.  At no point when speaking to police in 2018 did she level any allegation of sexual abuse at the appellant.  The complainant said she did not raise any allegation until she had graduated from high school.  In 2018, she was still living with her parents, although that was the year she left home.
31. [31]
    The complainant accepted that for a period of time in 2020, she lived with YN and YN’s mother.  At some point, YN’s mother had spoken to the complainant about torturing cane toads.  The complainant accepted that during a sleepover at YN’s house, she had asked if YN’s father was a paedophile.
32. [32]
    The complainant accepted that she had started dating QR and SR’s son when she was 15 years of age.  He was 18 years of age.  The relationship lasted for about a year to 18 months.  YN introduced her to QR’s son.  The complainant accepted that she told both QR and SR that she had a distaste for her mother and that she would deliberately stir up her mother.  She also openly expressed a distaste for her father.  She would speak ill of some of her brothers.  The complainant denied that she had asked QR and SR to legally adopt her.  She agreed that she legally changed her last name to their last name after her 18^th birthday.
33. [33]
    The complainant could not remember referring to a chicken coop when speaking to QR about the things that had happened to her with the appellant.  The shed was near the chicken coop.  She could not remember whether the extent of what she told QR was that the appellant would get her to sit on his lap and he would put his hand up her skirt and touch her vagina.
34. [34]
    The complainant disagreed with the suggestion that the appellant had never touched her sexually, or rubbed lubricant on her, or masturbated in her presence.  The complainant accepted that she would often play in the shed and the boat with her siblings.  There was also some play wrestling between her and the appellant over the years.  Sometimes that occurred on the mattress in the shed.
35. [35]
    The complainant accepted that on the occasions when the appellant touched her in the boat, the appellant’s wife was at home.  She agreed she did not try to run to [the appellant’s wife].  She also did not try to speak with police, or her parents, or her teachers.  She denied she was making up the allegations to get back at the entire [appellant’s] family.  She denied she had made these things up so she could stay with her boyfriend and his family.
36. [36]
    The complainant accepted that she had a distant relative called TW.  She could not recall having a conversation with TW in September or October 2020, in which she said, “I’ll do anything to get back at them”.  She accepted it was possible.  She could not recall saying to TW, “I’ll lie in court if I have to”.  The complainant accepted when she had previously given evidence, she had said that she had a plan to raise the allegations after her graduation from high school.  She denied that she had taken all of the previous transcripts that had been given to her by the prosecutor, to rehearse her evidence for court.  She accepted she had gone through the transcripts.  She also agreed that when she had come to court, she had given far more detail.  She denied that it was all a lie.
37. [37]
    In re-examination, the complainant said that she had conferred with the prosecutor the previous week, for about 30 minutes.  During that conference she had received some transcripts.  She did not think she left the conference with those transcripts.
38. [38]
    The complainant said the reference in her previous evidence to a plan, was her plan to finish her studies so she could keep her attention on doing the best she could at school and after she finished at high school, “take justice and tell the police what happened”.^[3]  The complainant said she had tortured cane toads when she was about 15, because she was angry and hurt about being abused by a family member.  She did not go to [the appellant’s wife], because she was scared.  Her motivation for speaking to police was because she wanted to take back justice for the offending against her.

Preliminary complaint

39. [39]
    YN gave evidence that she had been friends with a girl called OL from about grade 1.  She would go to OL’s home.  Whilst there, she met the complainant.  On occasions they would wander over the road to the appellant’s house.  The appellant was the complainant’s grandfather.  They would mostly play in the shed or underneath the house in the backyard.  There was a big boat in the shed, as well as a lot of tools and a big mattress leaned up against the wall.  On occasions she saw the appellant.  He would normally be working on something in the shed, or in the back yard.  She saw him about six times, between the ages of six and eight.
40. [40]
    YN said there was a period of four or five years when she lost contact with the complainant, only reconnecting when at high school together in year 8.  When they reconnected, the complainant told her a lot about her family life and the appellant.  This happened somewhere between year 8 and year 9.  The complainant said that the appellant used to touch her inappropriately, usually in her underwear, or over the top of her underwear.  The complainant did not give too much detail and did not say how often.  She did say it occurred usually in the boat.  It was a single conversation she had with the complainant.
41. [41]
    In cross-examination, YN accepted she first met the complainant at around the age of seven or eight years and reconnected when they were around 13 years of age.  When they played in the appellant’s shed, they would play pirates or ship rescue.  At those times OL would also be present.  YN agreed that when they reconnected in high school, the complainant started spending more time at her house, including sleepovers.  YN said it was possible that during one of those sleepovers, the complainant asked if YN’s dad was a paedophile.  She could also have said “all bald men or all men with big heads are paedophiles”.
42. [42]
    QR gave evidence that he met the complainant when she became his son’s girlfriend.  At the time, the complainant was 15 and his son was 18 years of age.  He became friends with the complainant, who subsequently changed her surname to his surname.  In his mind, the complainant became his daughter.  The complainant moved into their family home when she was aged 16 years.
43. [43]
    QR said that around the time the complainant was 15 or 16, he had a conversation with her, in his son’s bedroom.  The complainant said when she used to visit the appellant, he would take her out the back to a shed, into a boat.  He would get her to sit on his lap and put his hand up her dress and touch her.  There was only a single conversation.
44. [44]
    In cross-examination, QR agreed that the complainant made this disclosure at a time when she had just recently moved into their home.  The relationship with his son lasted about a year.  They were introduced by the complainant’s friend, YN.  There had been conversations about the family adopting the complainant.  They were not able to do that after she turned 18.
45. [45]
    QR agreed that the disclosure the complainant made to him, was that the appellant used to get her to sit on his lap and he would put his hand up her skirt and touch her vagina.  She said it was on a spot in the backyard, either near the chicken coop, or in the boat.  He accepted that in his statement he did not add the detail that the complainant said she had been taken into the boat by the appellant.  QR said the complainant most certainly was speaking about the boat.  He accepted his recollection would have been better at the time he gave his statement.
46. [46]
    SR gave evidence that she met the complainant when she became her son’s girlfriend.  She was aged 15 at the time.  The complainant moved in with them after she turned 16.
47. [47]
    In cross-examination, SR agreed that prior to her 16^th birthday, the complainant was staying with them a lot.  She did not officially move in until she was 16 years of age.  The relationship with the son lasted closer to two years.  SR was aware that the complainant had been in trouble with the police in relation to an animal torture.

Other

48. [48]
    YN’s mother gave evidence that she first met the appellant through his wife, in about 2008.  YN was friends with a girl who lived across the road from the appellant and [his wife].  YN would often stay at that friend’s house.  The complainant would often play at that friend’s house, because she would visit her grandparents across the road.  She knew the complainant was the appellant’s granddaughter.  YN’s mother said the appellant mentioned to her that he encouraged the girls to play on his boat, which was kept in the shed.
49. [49]
    On at least one occasion in 2009, YN’s mother had gone across the road to pick up YN who was playing with her friend and the complainant, in the back shed, around the boat.  It was a tool shed.  Sometimes there would be a car parked in it, which the appellant would be working on.  There may have been two occasions when she picked YN up from the appellant’s property.  On most occasions YN was at the friend’s house.
50. [50]
    In cross-examination, YN’s mother agreed that she was aware that the complainant had changed her last name to QR’s family name.  She accepted she had known the complainant from when she was around seven or eight years of age.  She did not see the complainant for a number of years.  From about grade 8, the complainant would stay quite often.  On one of the first sleepovers, she heard the complainant ask YN if YN’s father was a paedophile.  YN’s mother thought it was a weird thing for a child to say.  The complainant also said that all bald men were paedophiles or something to that effect.
51. [51]
    YN’s mother accepted that when the complainant would stay over, YN and the complainant would catch cane toads at night.  The complainant’s treatment of those cane toads became more aggressive.  YN’s mother had to intervene because the complainant was dismembering the toads.
52. [52]
    TW gave evidence that the complainant was her second cousin.  In or around September or October 2020, she had a conversation with the complainant for about five minutes.  She asked if the complainant was going to see her mother.  The complainant replied, “No, I don’t talk to her at the moment.  I’m not real happy with them”.  She asked the complainant why she did not want to go and see them.  The complainant replied, “Well, I don’t really get along with them” adding, “I’ll do anything to get them back”, stating, “I’ll lie in court, if I have to”.^[4]  There was no other context to the comment.
53. [53]
    Vanessa Unsworth gave evidence that she was the investigating officer in respect of the complainant’s complaint against the appellant.  During her investigation, she became aware that one of the complainant’s older siblings could be a relevant witness.  She sought to contact him on a number of occasions.  When she did speak to him and asked if he was willing to provide a statement, he said, “I have to go” and terminated the phone call.  She sent a follow-up text message asking him to contact her when available, but she received no response.  Vanessa also contacted PH in 2022.  PH did not live in Queensland and did not want to be involved in a court case, having to remember her childhood.
54. [54]
    In cross-examination, Vanessa agreed that there was a conversation between police and the complainant on 30 November 2020 and a further conversation on 12 August 2021.  There had been a conversation between police and the complainant on 16 July 2018.  There was no mention at all of any alleged offending by the appellant in the 2018 conversation.  There was mention of the appellant and his wife in that conversation.  At no point in the communication with police in 2020 and 2021, did the complainant explain that there was a delay in her allegations, due to a plan to graduate and then go and get justice.

Consideration

Ground 1

55. [55]
    The determination of a ground of appeal that the verdict of the jury was unreasonable and not supported by the evidence, requires an appellate court to undertake its own independent assessment of the record, to determine whether, on a consideration of the evidence as a whole, it was open to the jury to be satisfied of the appellant’s guilt of the offence, beyond reasonable doubt.
56. [56]
    In undertaking that independent assessment, the appellate court is to give due regard for the jury’s role in determining the appellant’s guilt and for the advantages the jury had in seeing and hearing the witnesses give evidence.^[5]  However, if the independent assessment of the record reveals discrepancies, inconsistencies, or other evidence which, notwithstanding those advantages, are of such a nature that a reasonable doubt ought to have been entertained as to the appellant’s guilt of the offence, the verdict of the jury is to be set aside as unreasonable.^[6]
57. [57]
    The appellant submits that the verdict of the jury was unreasonable, as the only evidence against the appellant came from the complainant, in circumstances where there was an evolving vague narrative in the context of antipathy towards her family, including evidence of openly expressed hostility and a preparedness to lie in court, shortly prior to making the complaint to police.
58. [58]
    However, an independent assessment of the record as a whole, does not support a conclusion that the verdict of guilty was unreasonable.
59. [59]
    Whilst there was a vagueness in relation to specific occasions of sexual contact between the appellant and the complainant, there was a consistency in the complainant’s account of regular touching by the appellant of the complainant’s breasts and vagina, underneath her clothes, when she attended the appellant’s residence, whilst she was in a boat, in a shed, or in the appellant’s bedroom.  The complainant did not deviate from the centrality of those allegations in cross-examination.
60. [60]
    Further, whilst the complainant did provide some additional detail in evidence, about masturbation, and movement of the appellant’s finger on the occasion he penetrated her vagina with his fingertip, those additions did not involve marked inconsistencies.  They were consistent with the provision of further detail by a credible witness.  As such they did not detract from the inherent consistency in the complainant’s evidence.
61. [61]
    There was also a consistency in the complainant’s account and the preliminary complaint evidence.  Whilst some of the persons to whom the complainant made preliminary complaint did not give evidence, two of those that did gave an account consistent with the complainant’s account of what the complainant had said to that person.  Their evidence was also consistent with what the complainant said the appellant had done to her whilst on a boat, in the shed.  QR’s reference to a chicken coop must be viewed in the context of a vagueness as to his recollection of what precisely was said, but an assuredness that there was reference to a boat.  The chicken coop was adjacent to the shed containing the boat.
62. [62]
    It was a matter for the jury as to the importance of the evidence that the complainant had expressed antipathy to her family, including a willingness to lie.  Those matters did not mean that the jury had to reject the complainant’s evidence as lacking reliability and credibility.  It was open to the jury to consider that such statements were consistent with a credible and reliable complainant, angry at what had occurred to her at the hands of her grandfather.

Ground 2

63. [63]
    Section 132BA of the Evidence Act provides:–

“(1) This section applies in relation to a criminal proceeding in which there is a jury.

2. The judge may, on the judge’s own initiative or on the application of a party to the proceeding, give the jury a direction under this section if the judge is satisfied the defendant has suffered a significant forensic disadvantage because of the effects of delay in prosecuting an offence the subject of the proceeding.

3. For subsection (2), a significant forensic disadvantage is not established by the mere fact of delay in prosecuting the offence.

4. In giving the direction, the judge—

1. must inform the jury of—

1. the nature of the disadvantage; and

2. the need to take the disadvantage into account when considering the evidence; but

2. must not warn or in any way suggest to the jury that—

1. it would be dangerous or unsafe to convict the defendant; or

2. the complainant’s evidence should be scrutinised with great care.

5. However, the judge need not give the direction if there are good reasons for not doing so.

6. The judge must not, other than under this section, give the jury a direction about the disadvantages suffered by the defendant because of the effects of delay in prosecuting the offence.

7. In this section—

“delay”, in prosecuting an offence, includes delay in reporting the offence.”

64. [64]
    As is clear from the section, a direction is not to be given under this section merely because of delay.  A threshold must be met, namely, that there was a significant forensic disadvantage in challenging, producing or giving evidence in the case.^[7]
65. [65]
    The appellant submits that although no direction was sought at trial, the delay in prosecuting the offence did give rise to significant forensic disadvantages as the extremely vague nature of the complainant’s allegations meant there was an inability to investigate and rely upon alibi, or documentary records and an inability to identify witnesses, or for the appellant to testify in a meaningful way to challenge the complainant’s assertions other than a bland denial.
66. [66]
    Although there was delay in the making of a complaint, there is no substance in the contention that the delay gave rise to a significant forensic disadvantage.  The complainant’s allegations, whilst vague as to specific occasions, contained a specificity which allowed the appellant to lead evidence in response thereto, if it be available.  That specificity related to the regularity with which the complainant said she was subject to inappropriate sexual touching by the appellant, the places at which it occurred and in particular, the boat housed in the shed, and who was present at the time.  If there was evidence available to dispute that the complainant attended with such regularity, or that the complainant did not accompany the appellant to the shed on the occasions of her visit, it was open to the appellant to obtain that evidence.
67. [67]
    That being so, the appellant did not meet the necessary threshold for the giving of such a direction.
68. [68]
    There was no miscarriage in the failure of the trial judge to give a direction under s 132BA of the Evidence Act.

Ground 3

69. [69]
    The appellant submits that a miscarriage of justice arose by reason of the trial judge’s failure to give the jury any direction about the significance of the complainant’s access to transcripts of her interviews with police and of her previous evidence.  A direction was necessary even though not sought at trial, as it was impossible to ascertain whether the complainant’s evidence was a true memory of the events, unassisted by those transcripts, or was purely a recitation of what she had read in the transcripts.
70. [70]
    It is concerning that the prosecutor considered it appropriate to provide to the complainant in conference, shortly prior to the trial commencing, access to transcripts of the evidence given on a previous occasion.  Such a practice is to be deprecated as it leaves both the prosecution and the complainant open to allegations of coaching.  Coaching of a witness is improper.
71. [71]
    However, in circumstances where the complainant said she conferred with the prosecutor for approximately 30 minutes and did not think she retained access to the transcripts at the conclusion of the conference, there is no basis upon which this Court could conclude that access to those transcripts impermissibly impacted on the reliability of the complainant’s evidence.
72. [72]
    Further, the jury were reminded by the trial judge of the fact the complainant had access to those transcripts and defence counsel took significant forensic advantage of that fact, to dispute the reliability of the complainant’s account.
73. [73]
    Against that background, there is no basis to conclude that the failure of the trial judge to direct the jury, specifically as to the potential that access to those transcripts may have adversely impacted on the complainant’s account, could have materially affected the jury’s deliberation to a verdict of guilty such as to give rise to a miscarriage of justice.^[8]

Ground 4

74. [74]
    The appellant submits that the complainant gave evidence that she disclosed the appellant’s sexual abuse to not less than six people, before her disclosure to police.  However, only three of those people gave evidence at trial and one of those people did not provide any evidence of receiving a preliminary complaint.  Further, their descriptions fell well short of the complainant’s allegations at trial.  In those circumstances, the trial judge ought to have directed the jury to consider what weight would be given to the evidence of preliminary complaint which was not supported by a preliminary complaint witness.  The appellant submits that the failure to do so occasioned a miscarriage of justice even though no such direction was sought at trial.
75. [75]
    It has long been established that a complainant’s evidence of preliminary complaint is not inadmissible by reason of the failure of the person to whom a preliminary complaint was made, corroborating it in evidence.^[9]  Such evidence remains relevant as it may buttress the complainant’s evidence if believed by the jury.
76. [76]
    The trial judge specifically directed the jury as to the use of that preliminary complaint evidence.  The trial judge said:

“Let me then go on to the evidence of what [the complainant] said to others and what others say they were told.  This is evidence which only has limited relevance, so I want to direct you about the limited way in which you might use it.  Before I do so, let me just remind you of what the evidence is.

I will start with [the complainant’s] evidence and who she said she told.  She began by saying she told her then best friend, PH, when she was 12 years old.  They were camping, and [the complainant] said she told PH that her grandfather used to assault her on her property and on her boat; that he would touch her and touch her vagina.  That is what [the complainant] says she told PH.  We have not heard from PH, of course, and you have heard an explanation for that this morning, in the detective’s evidence – that she contacted PH and PH was unwilling to be involved in the matter at all.

Next, [the complainant] says she told her friend, YN, when she was about 13.  That was at a sleepover at YN’s place.  [The complainant] said she told YN that her grandfather used to touch her on his property.

She also said that she spoke to QR and SR about it.  It was a few months before she moved in with the [Redacted] family that QR asked [the complainant] about her home life, and she told him that when she was a small girl, [the appellant] would take her out to the boat and touch her body.  [The complainant] also said that she told SR – and that seems to have arisen from QR having told SR.  SR then asked [the complainant] about it, and [the complainant] said she told SR that she had been sexually assaulted by [the appellant] on his boat.

Then, [the complainant] said that around her 14^th birthday, late at night she told some friends about the abuse, saying that the [appellant] would take her up to his boat and assault her.

So that is [the complainant’s] evidence.  We then come to the witnesses from whom you have heard.  So in relation to YN, YN said that when she was in probably grade 8 or grade 9, she was talking to [the complainant] and [the complainant] told her that her grandfather used to touch her.  [The complainant] did not give her specifics, but said that he touched her inappropriately in or over the top of her underwear, and that it usually occurred in a boat.

QR said that when [the complainant] was about 15 or 16, just before she moved in, he spoke to her, and [the complainant] told QR that she would visit the appellant and he would take her out to the shed to the boat, have her sit on his lap and put a hand up her dress and touch her.  Mr QR said that is pretty much what he remembered of the conversation.

SR was not asked about any conversation.  She did not give any evidence about discussing the matter with [the complainant] at all.  As I have mentioned, you have not heard from PH, nor it seems were these other people around her 14^th birthday identified at all.

So that is the evidence of what [the complainant] has said on other occasions.  It is evidence that can only be used as it relates to your assessment of [the complainant’s] credibility.  Consistency between what [the complainant] said to others and her evidence before you in Court is something which you may take into account as possibly enhancing the likelihood that her evidence is true.  However, you cannot regard the things said in those out of court statements by [the complainant] as proof of what actually happened.  In other words, evidence of what was said on those occasions may, depending on the view you take of it, bolster her credit because it is consistent, but it does not independently prove anything.  Likewise, any inconsistencies between what [the complainant] said to others and her evidence here in Court may cause you to have doubts about her credibility or her reliability.

Whether there are consistencies or inconsistencies, and whether they impact on her credibility or reliability is a matter for you.  Both counsel have addressed you on what they say are either the consistencies or the inconsistencies; and it is for you to weigh their arguments and decide for yourselves what effect, if any, that has on your assessment of [the complainant’s] evidence.

Inconsistencies in describing events are relevant to whether or not evidence about them is truthful or reliable; and the inconsistencies, if you find any, are a matter for you to consider during the course of your deliberations.  But the mere existence of an inconsistency does not mean that, of necessity, you must reject [the complainant’s] evidence.  Some inconsistency is to be expected because it is natural enough for people, who are asked on a number of different occasions to repeat what happened at an earlier time, to give a slightly different version on each occasion.”^[10]

77. [77]
    In circumstances where the jury were correctly directed as to the limited use of preliminary complaint evidence and evidence was led as to the circumstances in which some of those to whom preliminary complaints had been made were not called as witnesses, there is no reasonable prospect that a failure of the trial judge to specifically direct the jury as to the weight to be given to the evidence, could have affected the jury’s deliberations to the verdict of guilty.
78. [78]
    In any event, it would not have been appropriate for the trial judge to direct the jury that the failure of those persons to give evidence, meant the jury ought to closely scrutinise the complainant’s evidence.  That being so, there is no direction that the trial judge could practically have given, in addition to what had already been given as to the limited use the jury could make of evidence of preliminary complaint.

Conclusion

79. [79]
    The appellant has not established that the verdict of the jury was unreasonable, or that there has been a miscarriage of justice by reason of the trial judge’s failure to give any of the claimed directions.

Orders

80. [80]
    I would order:

1. The appeal be dismissed.

81. [81]
    BRADLEY JA:  I have assessed the sufficiency and quality of the whole of the evidence, in the context in which the appeal was brought.  I have reviewed and assessed the features of the evidence that support the appellant’s case and the Crown’s case on appeal as advanced in their respective written and oral submissions.
82. [82]
    I agree with the analysis of the evidence by Boddice JA and with his Honour’s conclusion that it was open to the jury to consider the complainant’s statements or anger towards members of her family to have been consistent with her being a credible and reliable witness, upset at the conduct of the appellant, as her grandfather.  For the reasons stated by his Honour, I agree that, on the whole of the evidence, it was not unreasonable for the jury to have decided there was no reasonable doubt as to the proof of the appellant’s guilt.
83. [83]
    I also agree with the reasons and conclusions of Boddice JA with respect to each of the other grounds of appeal raised by appellant.
84. [84]
    It follows that I concur with his Honour’s conclusion that the appeal should be dismissed.
85. [85]
    KELLY J:  I have made my own assessment of the evidence as a whole.  I have had regard to the features of the evidence emphasised by the appellant’s arguments.  I agree with the conclusion of Boddice JA that an assessment of the record as a whole does not support a conclusion that the verdict of guilty was unreasonable and I agree with his Honour’s reasons for that conclusion.  I also agree with his Honour’s reasons as they concern the other grounds of appeal and with the order proposed by his Honour.