R v BBQ [2009] QCA 166

SUPREME COURT OF QUEENSLAND

CITATION: R v BBQ [2009] QCA 166

PARTIES: R v BBQ (appellant)

FILE NO/S: CA No 167 of 2008 / DC No 462 of 2007

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction and Sentence

ORIGINATING COURT: District Court at Southport

DELIVERED ON: 16 June 2009

DELIVERED AT: Brisbane

HEARING DATE: 30 March 2009, 21 April 2009

JUDGES: Muir and Fraser JJA and Wilson J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: Leave granted to amend the notice of appeal in accordance with the applicant’s letter filed on 6 **November 2008.****Allow the appeal.****Set aside the convictions on each count.**Order a new trial.

CATCHWORDS: APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the appellant admitted to touching the complainant’s buttocks – where count 4 alleged that the appellant had touched the complainant’s vagina – where the trial judge directed the jury that the Crown case on count 4 was that the appellant touched the complainant on the vagina and buttocks – where the trial judge subsequently corrected this direction – whether the trial judge erred in directing the jury that count 4 of the indictment included the admitted touching of the complainant’s buttocks by the appellant – whether the trial judge’s correction on this point was sufficient – whether the trial judge inappropriately emphasised the appellant’s admission that he touched the complainant’s buttocks and misdirected the jury as to the use they could make of this evidence in relation to all of the counts / APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISCONDUCT OF COUNSEL – PARTICULAR CASES – where the appellant alleged that he had been denied a fair trial because the prosecution refused or failed to disclose relevant material in a timely manner and disobeyed a direct order of the District Court that the appellant be provided with certain materials – whether the alleged failure led to a miscarriage of justice to the appellant / APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISCONDUCT OF COUNSEL – PARTICULAR CASES – where the appellant argued that the prosecution misled the court in relation to the availability and relevance of a key fresh witness – whether the prosecution misled the court in this regard – whether the appellant suffered a miscarriage of justice due to the failure of his own counsel to take steps to ensure that the key fresh witness was called by the prosecution / APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISCONDUCT OF COUNSEL – PARTICULAR CASES – where appellant’s counsel at trial submitted that the evidence be edited to remove any reference to alleged or actual violence by the appellant towards the complainant’s mother – where appellant argued that this was contrary to his instructions to his solicitors – whether the appellant’s solicitors made a reasonable forensic decision to make this submission – whether there was a miscarriage of justice / CRIMINAL LAW – EVIDENCE – HEARSAY – ADMISSIBILITY – where the appellant argued that his solicitors erroneously dismissed a witness statement as hearsay – where witness testified that the complainant child admitted that her mother had ‘coached’ her in relation to the charges against the appellant – whether such hearsay evidence would have been admissible at trial / CRIMINAL LAW – EVIDENCE – MISCELLANEOUS MATTERS – STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN – where the appellant argued that there had been a miscarriage of justice because the trial judge improperly admitted evidence of a second interview of the complainant – whether more than one statement by a complainant child may be admitted under s 93A of the Evidence Act 1977 (Qld) / Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A / Evidence Act 1977 (Qld), s 18, s 21AN(2), s 93A, s 101 / Ali v R (2005) 214 ALR 1; [2005] HCA 8, cited / Browne v Dunn (1893) 6 R 67, cited / HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, applied / KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11, cited / Nicholls v The Queen (2005) 219 CLR 196; [2005] HCA 1, applied / Nudd v R (2006) 225 ALR 161; [2006] HCA 9, cited / R v Birks (1990) 19 NSWLR 677, cited / R v BJC (2005) 13 VR 407; [2005] VSCA 154, cited / R v G [1997] 1 Qd R 584; [1995] QCA 517, considered / R v LSS [2000] 1 Qd R 546; [1998] QCA 303, cited / R v NE [2004] 2 Qd R 328; [2003] QCA 574, considered / R v ON [2009] QCA 62, considered / R v S [1999] 2 Qd R 89; [1998] QCA 71, cited / R v Sheppard [2005] QCA 235, considered / TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited

COUNSEL: The appellant appeared on his own behalf / B G Campbell for the respondent

SOLICITORS: The appellant appeared on his own behalf / Director of Public Prosecutions (Qld) for the respondent

1. MUIR JA: I agree with the reasons of Fraser JA and with the orders he proposes.

2. FRASER JA: On 21 May 2008 the appellant was found guilty by a jury and convicted of four offences of indecently dealing with a child under 16 years. Each of the four charges alleged an offence on a date unknown between 1 January 2006 and 4 October 2006 with circumstances of aggravation that the complainant was under 12 years and was to the appellant's knowledge his lineal descendant. The complainant was the appellant's 10 year old daughter. The counts of which the appellant was found guilty were particularised by the Crown as follows:

● Count 1: The appellant pulled down the complainant’s skirt, tights and underwear and, whilst his head was close to her vagina, opened his mouth and made to bite the complainant.

● Count 2: The appellant kissed the complainant on her lips.

● Counts 3 and 4: The appellant tickled the complainant’s vagina inside her underwear.

3. The appellant was sentenced to 17 months imprisonment. The sentencing judge ordered that the appellant was eligible for parole after five months. In imposing that sentence the sentencing judge took into account seven months of pre-sentence custody which could not be declared as time served under the sentence.

4. The appellant's original notice of appeal specified three grounds of appeal against conviction. It also contended that the sentence was manifestly excessive, but in the appellant's written submissions he abandoned any challenge to his sentence.

5. The three grounds originally set out in the notice of appeal were:

"1.There has been a miscarriage of justice because Her Honour the Trial Judge erred when she improperly admitted evidence of a second interview of the complainant contrary to the provisions of section 93A of the Evidence Act (Qld) 1977;

2.There has been a miscarriage of justice because Her Honour the Trial Judge erred when, during the summing up to the jury, she repeatedly stated that count 4 of the indictment was the admitted touching of the complainant’s bottom;

3.The Defendant was denied a fair trial because of refusal or failure of the Crown to disclose in a timely manner material relevant to the proceedings;"

6. Those grounds had been suggested by defence counsel. The appellant, who represented himself in his appeal, applied for leave to amend his notice of appeal by adding the following five grounds (which I have re-numbered for ease of reference):

"4.Prosecution misled the court as to the availability and relevance of key fresh witness S.

5.Prosecution disobeyed a direct order from District Court Judge Newton 24.1.08 Southport District Court.

6.My solicitor failed to follow any of my instruction as to my defence, he dismissed witness accounts as hearsay when they weren't; failed to support me on my concerns regarding prosecution. I was misrepresented.

7.Count 2 cannot be a willed act.

8.The inconsistencies in counts 3, 4. Three different stories every time it was asked or recounted."

7. The respondent did not oppose leave. I would grant leave to amend the notice of appeal to add those grounds.

8. The appeal was originally listed to be heard on 3 December 2008. The hearing was de-listed when, on 28 November 2008, the appellant delivered written submissions and substantial additional material to the respondent and sought to adduce fresh evidence in support of his complaints about his lawyers. The appeal came on again for hearing on 30 March 2009. The appellant then sought more time to consider an affidavit by the appellant’s former solicitor which had been served on the appellant only that morning. The solicitor explained the reasons for his part in the delay. He adverted in his affidavit to the difficulty he had faced in responding to issues concerning his conduct of the defence at trial because he no longer had access to his file. He had delivered the file to the Legal Aid Office when it sought it for the purpose of considering an appeal. As it happened, the appellant had that file in Court on 30 March 2009. He consented to access to the file by the DPP on the undertaking of counsel to copy and return it as soon as practicable. The appellant also indicated that he would consider seeking legal representation for his appeal. Accordingly, the Court ordered that the appeal be adjourned.

9. On the resumed hearing of the appeal on 21 April 2009 the appellant, who remained unrepresented, relied upon various affidavits to which I will refer and he adduced oral evidence from one deponent, Ms P. The respondent relied upon two additional affidavits by the appellant’s solicitor and adduced oral evidence from him. The Court received all of this evidence but reserved the question whether it was admissible in the appeal.

10. I will discuss the appellant's grounds of appeal after I have summarised the evidence and issues at trial.

The evidence

11. The complainant's evidence was given in the form of an audio tape of her interview with a police constable on 18 October 2006 and a video tape of her interview with the same police officer on 29 October 2006, both tendered pursuant to s 93A of the Evidence Act 1977 (Qld), and a video tape of pre-recorded evidence under Division 4A of the Evidence Act taken on 6 November 2007. The recorded interviews were proved by evidence of the police constable and the complainant also affirmed the truth of statements in her recorded interviews when she gave her pre-recorded evidence. The complainant's mother (“C”) gave evidence of a preliminary complaint made by the complainant on 4 October 2006. The appellant did not give or call evidence, but his version was contained in a record of interview with police conducted on 8 November 2006, which was tendered in the Crown case.

12. C gave evidence that she and the appellant had formerly lived together and they had three children, including the complainant’s elder sister (“A” who was 16 years old when C gave evidence) and the complainant. C said that she and the appellant had been separated for about two years as at October 2006. Pursuant to an arrangement between them the complainant was to stay with the appellant at his flat on every second weekend, usually arriving there on Friday afternoon around 5pm and leaving there at about the same time on Sunday afternoon. The complainant gave evidence that the four offences were committed whilst she was staying with the appellant on weekend access visits.

13. In the complainant’s first police interview on 18 October 2006 her statement related only to count 2. On her evidence and on C’s evidence the only incident of which the complainant had by then complained to C was that the appellant had kissed her on her lips. I will summarise the evidence concerning count 2 before referring to the evidence on the other counts.

Count 2

14. C gave evidence that on 4 October 2006, whilst she was driving the complainant home from some shops, the complainant spontaneously said that the appellant "kissed me in a way I shouldn't be kissed". When C asked what the complainant meant, the complainant repeated what she had said. When they arrived home C asked the complainant to say exactly what had happened. The complainant said that she was lying on the lounge watching TV whilst the appellant was lying asleep in front of her. He woke up, opened his eyes, looked at the complainant, and then "kissed me in a way I shouldn't be kissed". The complainant said that she had become upset, crying and shocked and she had pushed the appellant away from her. She said that the appellant had "said to me that I thought you were my girlfriend".

15. On the following day, 5 October 2006, C went to a police station and reported what the complainant had said. In cross-examination C adhered to her evidence about the terms of the complaint made by the complainant to her. C agreed in cross-examination that the appellant sometimes had the care of the complainant every weekend during the relevant period. Defence counsel also elicited that there was a good deal of conflict between the appellant and C.

16. The appellant's counsel put to C that within a few days of her having spoken to police she asked SF to look after the complainant on weekends. It was also put to C that at this time the complainant was upset at not being able to go back to stay with her father. C denied both propositions and said that she had asked Ms SF to babysit whilst C was working nightshifts and to take the complainant to school in the following mornings. The appellant's counsel also put to C that the complainant first started going to Ms SF's place for babysitting after the date of the first police interview (18 October 2006): C could not recall.

17. In the complainant’s first recorded interview she said that when she was staying with the appellant he kissed her on her lips for about three seconds, she turned her face and he then said her name and "sorry", she turned her head and started crying, and the appellant then went into his bedroom and went to sleep. She said that she was pretty sure that the appellant could have been "a little, tiny bit drunk" when it happened. The complainant said that after that whenever the appellant woke up whilst she was there she would start her sentences with the word "Dad" so that the appellant knew who she was. The complainant said that the appellant had never tried to do anything else to her before and that he had never said anything inappropriate to her before. The complainant said that the next day or a couple of days afterwards the appellant asked her not to tell anyone or else he would kill himself.

18. During the complainant’s pre-recorded evidence, when asked in cross-examination to recount quickly what each of the incidents was, she said that her Dad "kissed me and he tickled me" but she said that she couldn't remember the other incident. She was then asked which incident happened first and she referred to the appellant having kissed her. She agreed that was the first incident and it occurred in the lounge room at the appellant's apartment. She agreed in cross-examination that after the appellant bent over and kissed her she turned her head away and the appellant stopped kissing her and said her name; and that the appellant "was really surprised that it was you". She agreed that when the appellant realised it was the complainant, he got up and went into the bedroom.

Count 1

20. Towards the beginning of the complainant's second interview with police the complainant explained that her mother had brought her in for an interview again because the complainant had told her more things that had happened. (The complainant’s mother’s evidence to the same effect had been ruled inadmissible at a pre-trial hearing. The reason given for that ruling was that, even though the complainant's earlier statement of 18 October 2006 related only to count 2, the subsequent complaint concerning the other counts did not fall within the definition of "preliminary complaint" in s 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld) because it was made after the complainant's first formal witness statement to a police officer. This ruling is not in issue in this appeal.)

21. The complainant said that she hadn't told the police officer about these other things at the first interview because she was embarrassed.

22. The complainant said that at a time when the appellant was drunk and they were together in his flat, whilst the complainant was lying on the couch and the appellant was sitting next to her on the ground, the appellant pulled down her skirt, tights and underwear and, whilst his head was close to her vagina, opened his mouth and started making "rah" noises: he was definitely drunk at the time. The complainant pulled away and said that she needed to go to the toilet, and the appellant stopped and acted as though nothing had happened. The complainant gave and adhered to evidence to the same effect in her pre-recorded evidence.

23. When it was put to the complainant that she had no problem in going back to spend time with her father after he had done this and other things the complainant replied that she didn't really want to go back but "I couldn't really say anything".

24. The appellant's version was that this alleged incident did not occur.

Count 3

25. In the complainant's second interview she gave evidence that on two occasions (the first in time of which was charged as count 3) the appellant had started tickling her back, he moved his hand down and started tickling her bottom, and he then "went on the other side and tickled my vagina". This happened after the complainant had been lying on the couch (in the lounge room) and she had sat up when the appellant came over from the other couch to give her a hug. The appellant pulled away when the complainant said she wanted to go to the toilet. The complainant was wearing a nightie and underwear.

26. She thought that the appellant did this a month or two after the kiss (count 2). She said that he did it twice, once on a Saturday (count 3) and again on the Sunday of the same weekend (count 4). She thought it was about 5 or 6.00 pm on the Saturday and then about 4.30 pm on the Sunday.

27. In cross-examination the complainant said she thought that the incident after the kiss was about two weeks later and was in the bedroom. The complainant agreed that the appellant had tickled her on her back all her life. She agreed that she had told the police that the appellant had moved his hand around the side and started to tickle her on the front and that in cross-examination she had said that the appellant had pushed his hand further down her back and tickled her vagina in that way. She said that she meant the same thing by both descriptions.

28. When it was put to her she had told the police that this had happened in the lounge room but that in her evidence in cross-examination she said it was in the bedroom, she explained that one event happened in the lounge room and one in the bedroom. When it was put to her that she had earlier agreed in cross-examination that there were only three different events in all, she agreed she had said that but she said she "put the tickling times into the one because they were the same thing", even though they happened on different days. The complainant denied the suggestions that the appellant had not touched her in her private parts and that any tickling happened only once.

29. The appellant's version was that this alleged incident did not occur.

Count 4

30. In the complainant's second police interview she said that the same thing happened again on the Sunday; that the appellant again was tickling her on her back and then he went down to her bottom and started tickling her on the other side. On this occasion she told the appellant that she had to get up to have a drink, after which it did not happen again. She thought she was wearing a denim skirt or denim shorts and a singlet. The appellant put his hand down inside her pants. She knew it was wrong because the appellant told her not to tell her mother.

31. In cross-examination the complainant said that one of the tickling events happened two or four weeks after the first tickling incident. In further cross-examination the complainant said that one tickling happened about two or four weeks after the first tickling, she thought the kissing was before the tickling incidents, but she could not remember whether the incident of pulling down her pants and "growling" was before or after the kissing.

32. In the appellant's police interview, after he gave his version of the kissing incident he referred to "the other time" on a Sunday afternoon. This happened after the kissing incident and perhaps two and a half months before the appellant's interview: that would place "the other time" in about August 2006. The appellant said that after he had fallen asleep with the complainant on the lounge "I had a hand out into the back of her pants". The appellant denied having touched the complainant's vagina. Towards the end of the interview the appellant said that he knew he had done the wrong thing there twice. I will set out his version of this incident in the course of discussing appeal ground 2.

Further cross-examination of the complainant

33. The complainant denied the suggestion in cross-examination that her mother had told her to make those allegations against her father. When it was put to her that her mother wanted her to say those things to get her father into trouble, she responded that she would not do that because she loved her father. She added that her mother had not asked her to do so. She denied defence counsel's suggestion that she had told her father that her mother and family were trying to brainwash her against her father. She denied that her mother told her that her father was not a nice man. She admitted that she had gone back to her father's place after some of the things that had happened and before she told her mother of them, she said that she "sort of" liked going back to her father's place but that she "didn't really want to go back, but I couldn't really say anything".

34. The complainant agreed with defence counsel’s suggestions that she had had a conversation with SF in which she told her about the kissing and how she was uncomfortable with it and that she did not tell SF anything else.

The issues at trial

35. The issues then were whether the Crown had proved beyond reasonable doubt that: the appellant had engaged in the "growling" (count 1); the appellant had touched the complainant's vagina (counts 3 and 4); and that the appellant's kissing of the complainant was not a willed act and not done in an honest and reasonable belief that he was kissing his girlfriend rather than the complainant (count 2). A further question arose whether the appellant's admitted touching of the complainant's buttocks (which was not itself charged as an offence but which was argued by the prosecutor to relate to count 4) was a willed act.

The grounds of appeal

Ground 1: admission of the second interview of the complainant under s 93A of the Evidence Act 1977 (Qld)

36. Section 93A of the Evidence Act 1977 (Qld) is in Part 6 of that Act. It provides that in any proceeding where direct oral evidence of a fact would be admissible, any statement taken to establish that fact, contained in a document, shall, subject to that Part, be admissible as evidence of that fact if the maker of a statement was a child or a person with an impairment of the mind at the time of making the statement and had personal knowledge of the matters dealt with by the statement, and the maker of the statement was available to give evidence in the proceeding. There is no indication in s 93A that more than one such statement by a complainant child may not be admitted in evidence in a criminal proceeding.

37. In a pre-trial ruling by the trial judge on 19 May 2008 her Honour ruled that the recordings of both interviews were admissible. That ruling was correct. It was not argued that if the evidence was admissible the trial judge erred in failing to reject any of it in her Honour's discretion. There is no reason to think that there was any such error.

Ground 2: error in directing the jury that count 4 of the indictment was the admitted touching of the complainant's bottom

38. The Crown case on count 4 was that the appellant had tickled his daughter on the vagina inside her underwear. The appellant argued that the trial judge misled the jury by directing it that the Crown case was that the appellant had touched the complainant's bottom and that the subsequent correction of that error by the trial judge in a redirection was inadequate to repair the damage done by the earlier errors. He also argued that the trial judge’s directions inappropriately emphasised his alleged admission that he had touched the complainant's bottom.

39. An assessment of the appellant’s argument requires reference to the trial judge's directions to the jury concerning the use it could make of evidence that the appellant had admitted touching the complainant’s buttocks, an event which the prosecutor related directly to count 4 and indirectly to all counts. Ground 2 is not aptly expressed to encompass criticism of those directions, but the respondent’s counsel, appropriately recognising the appellant’s disadvantage as a self-represented litigant, did not argue that the Court should not consider the sufficiency of the directions. He assisted the Court with submissions on the topic. In my view the Court is obliged to consider the sufficiency of the trial judge’s directions on this topic.

40. The prosecutor submitted to the jury that a significant admission might be derived from the following passages in the transcript of the appellant's police interview (which the context suggested occurred on or about the last occasion when the complainant stayed with the appellant):¹

Mmm-hmm?-- She - we fell asleep again on the lounge. She was beside me and um, I was um, [indistinct] I’ve [indistinct] since she was a baby on her back but when I was [indistinct] dozed and I was up and she was going back to her mum, I had a hand out into the back of her pants-----

Mmm-hmm? -- ----- like that. And um, so - I didn’t really feel comfortable with that. Anyway, so when we were leaving I said to her, 'Look, don’t tell your mother I didn’t that' only because I know that her mother will blow me [indistinct] and as soon as I asked her not to say it I regretted saying that because it’s more like go and tell your mother but it’s just - I knew I’d done the wrong thing -----

Mmm-hmm?-- ----- and I didn’t want it to get blown out of proportion and she ended up the [indistinct] like I don’t see me other two kids and I sorta hold her pretty special this one, and I told her that [indistinct] your mother, there was nothing - I didn’t have any [indistinct] intentions or anything like that but I know it wasn’t the right thing to do. But [indistinct] how it happened-----

…

Mmm-hmm?-- And [indistinct] we just laying there talking which is something we probably did [indistinct] and I was rubbing her back [indistinct] just something that I’ve done since she was a baby you always had to tickle her to sleep and [indistinct] - I wouldn’t say I was asleep but I was dozing sort of half dozing and when I woke up - or I’ve [indistinct] so quick like I’m sort of not asleep, asleep but half semi sleep and as far as I know I had me hand down the back of her pants like that on her bottom.

Mmm-hmm?-- And um, [indistinct] pulling [indistinct] and um I don’t know. Really - I know I did the wrong thing again but like you say I didn’t think about I didn’t I wasn’t doing it on purpose I [indistinct] down her pants just-----

How did you know it was wrong though, why did you think that was wrong?-- Because it is wrong-----

Mmm-hmm?-- ----- and it is wrong and I felt it was wrong.

…

Yep. Okay. Um, so where did your hand actually go?-- She was laying here beside me-----

Mmm-hmm?-- I was tickling her back like that…-----

Mmm-hmm?-- I stuck me hand - well, me hand was like that...so, if she’s laying there...her head’s here...-----

Yeah?-- I was like that...-----

Okay. Did your hand touch her vagina?-- No, not at all.

No?-- Not at all.

Well, you said-----?-- It was on her bum cheeks."

41. The prosecutor argued that the appellant's account to police about touching the complainant's buttocks inside her clothing gave strong support to the complainant's account of all four charges. Whether this argument was available and its basis had been discussed before the commencement of closing submissions on 19 May 2008. The trial judge then accepted the prosecutor’s argument that, if the jury was satisfied beyond reasonable doubt that the appellant had admitted touching the complainant's buttocks inside her underwear whilst knowing that what he did was wrong, then the jury could regard that as evidence of an unnatural sexual attraction between a father and daughter which provided evidentiary support in relation to all of the counts.

Directions to the jury

42. In conventional directions at the beginning of the summing up the trial judge emphasised that the burden of proof rested with the prosecutor to the standard of proof beyond reasonable doubt, directed the jury (as the trial judge had directed at the outset of the trial) that although charges of sexual misconduct involving children naturally excited strong feelings and emotions the jury was required to put aside any feelings of sympathy or prejudice and instead approach its task dispassionately by looking carefully at the evidence and by a process of reasoning arriving at its verdict; directed the jury as to what constituted evidence, explained the way in which the jury was entitled to draw inferences from proved facts, and directed the jury to ensure that any inference must be based upon facts found to exist and that there must be a logical and rational connection between the facts and the inference. The trial judge specifically warned the jury against speculating or guessing or filling in gaps in the evidence.

43. The trial judge also gave the conventional direction that the jury was obliged to consider each of the four charges separately, evaluating the evidence relating to each particular charge to decide whether the jury was satisfied beyond reasonable doubt that the prosecution had proved its essential elements. Apart from one error to which I now turn, the trial judge also gave appropriate directions identifying the elements of each of the offences charged.

44. The trial judge directed the jury on a number of occasions that counts 3 and 4 charged the appellant with touching the complainant on her buttocks and vagina inside her underwear. For example, when giving directions about the question whether the touching was indecent the trial judge said that the Crown case was that a touching of the complainant on her buttocks and vagina was indecent. Similarly in the trial judge's directions on the issue whether count 4 involved willed acts, the trial judge referred to the alleged touching "on the buttocks and on the vagina". Those and other, similar directions about counts 3 and 4 were in error because those counts were confined by particulars to alleged touching only of the vagina.

45. In directions which I quote below the trial judge also attributed to defence counsel a statement that the appellant was charged with touching the complainant’s buttocks and vagina. The trial judge attributed to the prosecutor an argument that if the jury was satisfied that the appellant did touch the complainant on the buttocks and her vagina inside her underwear they would have no difficulty in concluding that that offended community standards. No reference was made in the summing up or in the re-directions to the question whether the Crown had proved beyond reasonable doubt that the touching only of the buttocks described in the appellant’s version was indecent.

46. The first mention the trial judge made of the use the jury might make of the appellant's alleged admission of touching the complainant's buttocks was the observation that the prosecutor had argued that the appellant's account to police about having his hand in the child's clothing, even on his version of touching the buttocks, gave "strong support" to the complainant's account of all four charges. The trial judge then gave the jury the following directions concerning the use it could make of that evidence:

"Now, in order to rely on evidence and statements made by the defendant to the police as supporting the Crown case you must be satisfied of a number of things. Firstly, you must be satisfied beyond reasonable doubt that he did give the answers that the Crown relies upon and that they were true. The evidence of the defendant's admissions and statements, if you like, is in the form of an audio tape which you've heard played and you are entitled to have that played again if you wish.

If you are satisfied that the statements relied upon by the Prosecutor were, indeed, made by the defendant, the second aspect you must consider is whether those parts that the prosecution relies on as indicating guilt are true and accurate, and in this case the part that the prosecution relies upon is the statement that he had his hand inside her underpants and he touched her buttocks. It's up to you to decide whether you are satisfied that those things said by the defendant which would tend to indicate or the prosecution rely upon are true.

…

Also, remember that just as there are statements that the prosecution has referred you to that it relies on as supporting the case against the defendant, there are other answers that the defendant gave which you might view as indicating his innocence, and you're entitled to have regard to those answers if you accept them and to give them the weight that you think is appropriate, bearing in mind, of course, as with the other statements, that they've not been tested by cross-examination.

…

Now [the prosecutor], you'll remember, said that you can look at the statement about the hand inside the underwear touching the buttocks when considering all 4 of the counts,

…

Looking at count 4, the incident that I've called the tickling on the couch, the prosecution says the defendant's account of that incident also supports her account of the incidents, not just charged as count 4, but generally, the growling incident, the kiss and the other tickling, the one that occurred in the bedroom which is count 3.

Now, again, it is entirely a matter for you whether you do find them supportive of [the complainant’s] evidence about the other counts. You will recall that the defendant said that he had put his hand inside [the complainant’s] underpants and had touched her buttocks and told police he knew that that was wrong. Now, you might consider his statements about his knowledge that it was wrong were somewhat ambiguous. You might think it's not clear at what point he formed the view that what had happened was wrong, whether it was at the time he did what he said he'd done or at a later time. However, if you are satisfied beyond reasonable doubt that he knew at the time that what he said he did was wrong you might consider they indicate something about the defendant's interest in [the complainant]. It's a matter for you whether you're satisfied of those things and whether you find his answers are supportive of [the complainant’s] evidence about all 4 counts. Entirely a matter for you what you make of that.

So just to be - just to summarise that for you: in relation to the - his answers referring to count 4, you must be satisfied that he did make the statement that the prosecution relies upon, you must be satisfied that the statement he made was true, and you must be satisfied that he knew, when he put his hands inside her pants and touched her buttocks, that what he was doing was wrong - all right - and if you're satisfied of that, those things, then you may consider his statements about the count 4 incident support [the complainant’s] evidence about all of the counts or you may not. It's entirely a matter for you. I'm not indicating either way. All right.

…

He [defence counsel] reminded you that the defendant is not charged with touching his daughter's bottom in relation to counts 3 and 4. He's charged with touching her bottom and vagina. He said it was dangerous to equate one type of touching with another and argued that you should not make anything of that admission. Now I've already given you a direction, but that's a matter for you what you do with that."

[Emphasis added]

Re-directions

47. The summing up ran from 12.41 pm until 1.45 pm. When the jury retired defence counsel sought two redirections, which the trial judge gave at 1.52 pm. The trial judge then directed the jury that the defence case on counts 1, 3 and 4 was that the "growling" and the two incidents of "tickling" did not occur and that the Crown relied for the elements of touching and indecency for counts 3 and 4 on a finding that the appellant touched the complainant on the vagina. The trial judge repeated that the defence case was that those incidents did not occur and that the Crown relied for counts 3 and 4 on the jury being satisfied beyond reasonable doubt that the appellant had touched the complainant on the vagina. There was no request for any further redirection.

Discussion

48. The trial judge erred in repeatedly directing the jury that the appellant was charged in counts 3 and 4 with touching the complaint on her buttocks and her vagina. The appellant was not charged with any offence that involved only touching on the complainant's buttocks. The redirections were designed to correct that error by making it clear that acceptance of the Crown case on counts 3 and 4 required the jury to be satisfied beyond reasonable doubt that the appellant had touched the complainant on the vagina.

49. The original directions threw the onus on the Crown of proving for counts 3 and 4 not merely that the appellant had touched the complainant’s vagina but that he had touched her buttocks and her vagina. Even putting aside the remedial effect of the redirections, the error therefore did not directly disadvantage the appellant. Nevertheless, when assessing the effect of the directions quoted above (in which the trial judge repeated some five or six times the essence of the prosecutor’s contention that the appellant’s admitted touching of the complainant’s buttocks pointed to his guilt), it is right to bear in mind the numerous additional references in the summing up, resulting from that error, to an alleged touching of the complainant’s buttocks.

50. The respondent’s counsel submitted that the evidence of the appellant's version constituted a partial admission in relation to count 4, that the jury was entitled to reason that it was unlikely that the appellant's hand had involuntarily found its way to the complainant's buttocks, and that the jury might then reject so much of the appellant's version as suggested that his touching of the complainant’s buttocks inside her underwear was accidental.

51. The respondent’s counsel submitted that if the jury regarded the evidence as an admission by the appellant that he touched the complainant's buttocks knowing that was wrong, the jury was entitled to find that the appellant had and had given effect to a sexual interest in the complainant and that the alleged admission could for that reason be regarded by the jury as supportive of the complainant's evidence of each of the offences.²

52. That was essentially the complexion which the prosecutor put on the evidence in his argument to the jury. Consistently with that approach, the jury was correctly directed that it could use the evidence only if persuaded beyond reasonable doubt of its truth and that it constituted an admission by the appellant that he had touched the complainant on her buttocks when he knew that to be wrong.³

53. No complaint was made at trial or on appeal about the admissibility of the evidence. What is in issue is the sufficiency of the directions to the jury as to the use which it might make of that evidence.

“The fundamental propositions stated by the Court in Alford v Magee (211), which have since been referred to many times (212), must remain the guiding principles. First, the trial judge must decide what are the real issues in the particular case and tell the jury, in the light of the law, what those issues are. Secondly, the trial judge must explain to the jury so much of the law as they need to know to decide the case and how it applies to the facts of the particular case.”

58. In this case the evidence was admitted on the basis advanced by the prosecutor that it demonstrated that the appellant had and had given effect to a sexual interest in the complainant. That should have been reflected in the trial judge’s directions.⁵ Although that was hinted at, it was not explained to the jury.

59. The directions also should have related the evidence to the issues arising under each of the counts. For example, the evidence must have been admitted in relation to count 2 on the footing that the appellant’s alleged sexual interest in the complainant at the time of the events alleged in count 4 tended to support the Crown case that his (admitted) kissing of the complainant the subject of count 2 was not an unwilled act or done by mistake. The jury was not given any direction to that effect or otherwise explaining the use to which it might put the evidence in considering the issues arising under count 2 or the other counts.

60. Appropriate directions of that character would have exposed potential weaknesses in the Crown’s reliance on the evidence. The temporal proximity of the event described by the appellant to the conduct the subject of the other counts necessarily affected its relevance and persuasive value for those other counts.⁶ The times of the alleged incidents were quite unclear, but the conduct the subject of the alleged admission (which was put forward as a partial admission of count 4) was alleged to have occurred relatively shortly after count 3 (a day or weeks) but a considerable time, perhaps months, after counts 1 and 2. The evidence was to the effect that the appellant had access to the complainant no more frequently than every weekend, but even so the apparently lengthy periods between the earlier counts (particularly counts 1 and 2) and count 4 tended substantially to weaken the probative force in relation to count 1 of the admission for which the prosecutor contended. The probative value of the evidence was further weakened to some extent by the fact that the admitted conduct differed markedly in nature from the conduct charged in counts 1 and 2 and it also differed, albeit less markedly, from the conduct charged in counts 3 and 4.

61. Yet to the extent that the directions conveyed anything about this they, like the trial judge’s summary of the prosecutor's argument, conveyed only that the jury might conclude that the alleged admission supported all four counts in equal measure in some unspecified way.

62. I should refer also to a submission made for the respondent that the directions might have included a warning against general propensity reasoning, that is, a direction that the jury should not reason from acceptance that the appellant touched the complainant on her buttocks on the admitted occasion to the conclusion that it was likely that he had touched her on other occasions.

Consequences of misdirections

66. Because no exception was taken to this aspect of the trial judge's directions or to her Honour’s redirections, there was no "wrong decision of any question of law".¹¹ The question for this Court is whether the deficiencies in the directions occasioned a miscarriage of justice.¹²

67. The directions to which I have referred potentially worked to the appellant’s disadvantage. Although that most seriously affected counts 1-3, the prejudice potentially extended also to count 4. It was not submitted for the respondent that defence counsel’s failure to seek redirections on this topic was explicable by reference to any perceived forensic advantage. Nor was it submitted for the respondent that if the Court arrived at this conclusion the Court should dismiss the appeal on the ground that no substantial miscarriage of justice had actually occurred.¹³

68. Accordingly I would allow the appeal on this ground. Subject to consideration of the remaining grounds of appeal, a new trial on all counts should be ordered.

Ground 7: Count 2 cannot be a willed act

69. The trial judge directed the jury in relation to count 2 that the jury must find the appellant not guilty if the prosecution failed to exclude beyond reasonable doubt the possibility that the kiss occurred independently of the appellant's will and that the appellant did not hold an honest and reasonable belief that the complainant was his girlfriend when he kissed her. As to the first point, whether the kiss was a willed act, the trial judge accurately summarised the evidence to the effect that the appellant was asleep when he kissed the complainant and woke up to find himself kissing her. In relation to the second element, arising under s 24 of the Criminal Code 1899 (Qld), the trial judge explained the effect of that section and related its elements to an accurate summary of the evidence that the appellant thought he was kissing his girlfriend at the time when he found himself kissing the complainant. The trial judge also summarised the competing arguments made for the Crown and for the appellant in those respects.

70. The appellant did not contend for any error in the summing up in relation to count 2 and I have found none. In my opinion the complainant’s evidence about the fact and nature of the appellant’s conduct in kissing her, coupled with the evidence of the appellant’s qualified admissions of this charge and what could legitimately be drawn from his version of having touched her buttocks under her underwear (though the probative value of that was weakened by the separation in time and character I have mentioned) was sufficient to justify the jury in finding that the Crown had proved the elements of count 2 beyond reasonable doubt. The evidence overall was sufficient to justify the jury in concluding that the Crown had excluded beyond reasonable doubt the possibilities that the kiss was an unwilled act and that the appellant laboured under an honest and reasonable but mistaken belief that he was kissing someone else.

Ground 3: the appellant was denied a fair trial because of refusal or failure of the Crown to disclose in a timely manner material relevant to the proceedings

Ground 5: Prosecution disobeyed a direct order from District Court Judge Newton 24.1.08 Southport District Court

71. Grounds 3 and 5 were premised upon the appellant's contention that the Crown failed to comply with an order made on 24 January 2008 (when the matter was delisted from its then current listing for trial) that the prosecutor was to provide to the defence the transcripts of text messages on the appellant's mobile phone once that material was in the prosecution’s possession.

72. The respondent relied upon an affidavit by a clerk employed by the Office of the Director of Public Prosecutions which recited that on 24 March 2009 someone else in the office said that on 22 February 2008 the appellant’s lawyers “were provided with a CD containing images." In an affidavit filed on 20 April 2009 the appellant swore in response that Mr McCallum may well have been supplied with the CD containing images on 22 February 2008 but that "this was not the forensic download or data dump" ordered on 24 January 2008. He swears that such a download was carried out on 2 April 2008 by a forensic computer analyst but that it was not a complete download of text messages. The bases of these assertions by the appellant are not altogether easy to understand, but one point that he makes is that a copy of the "mobile phone downloads" sent from the Director of Public Prosecutions to the appellant on 5 August 2008 includes a series of text messages which are sequentially numbered "2, 4, 5, 6, 7, 8, 10, 11, 19 and 20", omitting other numbers in that sequence. There is, however, no evidence to indicate that the "missing" messages were able to be downloaded, that they were in fact downloaded, or that any text messages in the possession of the prosecution were not provided to the appellant's solicitor and defence counsel before the trial. Furthermore, assuming in the appellant's favour that there was some failure by the prosecutor to comply with the order requiring disclosure of evidence obtained upon a forensic examination of the appellant's mobile phone, I am not persuaded that it led to any miscarriage of justice at the trial. In order to explain why I have reached that conclusion it is necessary briefly to identify the significance attributed to the "missing" text messages by the appellant.

73. One category of such messages concerns messages which the appellant argued would have facilitated disproof of the complainant's evidence concerning the time at which count 1 occurred. The complainant said that the events charged in count 1 occurred after an argument between the appellant and C in January 2006. The appellant argued that the missing text messages would demonstrate that the argument occurred at a different time, but his description of the subject matter of the argument (that it arose out of C having left her car in the driveway of the apartment block where the appellant lived) bore no resemblance to the argument identified by the complainant. Those messages were not shown to have any relevance to any issue at trial.

74. The appellant argued also that a missing message might contradict the complainant's evidence that after the appellant committed the offence in count 4 he rang the complainant to check that she had not told C about the offence. None of the mobile phone messages provided to the Director of Public Prosecutions supported that submission.

[76] The appellant swore in his affidavit filed on 20 April 2009 that the 10 messages which were missing were sent to him from the complainant’s sister, A, in December 2006 and January 2007, and that they were text messages "of disbelief and reasons why [the complainant] had made these claims". Without more, the evidence of those messages would not have been admissible at the trial because the appellant's description of them suggests that they reflect only A's opinion. The evidence adduced by the appellant in the appeal did not go so far as to suggest that (except in one respect concerning the evidence of Ms P, to which I will return) the complainant had made any statement in A's presence concerning the veracity of the complainant's allegations against the appellant. Subject to consideration of that one matter, I would reject appeal grounds 3 and 5.

Ground 4: Prosecution misled the Court as to the availability and relevance of key fresh witness SF

[77] At preliminary hearings held under s 590AA of the Criminal Code the prosecutor argued that because Ms SF placed the date of the complaint made to her at a time which was after the complainant's first police interview Ms SF's evidence could not be adduced as evidence of fresh complaint. Defence counsel argued that the dates given by Ms SF might be mistaken because her statement indicated that C was unaware of the complainant's complaint that the appellant had kissed her on her lips. That issue was not resolved at that hearing. Ultimately the only order made in this respect was Kingham DCJ's order on 6 December 2007 that any s 590AA application by the appellant in relation to evidence by Ms SF must be filed and heard by a particular date. No such application was made.

[78] I have found nothing to support the appellant's ground of appeal that the Court was misled as to the availability or relevance of evidence that could be given by Ms SF.

[79] Under this ground of appeal the appellant also argued that he was the victim of a miscarriage of justice because his defence lawyers failed to take steps to ensure that the Crown called Ms SF to give evidence of a complaint to her by the complainant. He argued that his lawyers should have taken advantage of the opportunity afforded by the order of 6 December 2007 of applying for a stay for that purpose.

[80] The appellant applied in the appeal for leave to adduce evidence by Ms SF. He did not seek to have Ms SF give oral evidence but he sought to rely upon a police statement of Ms SF dated 22 October 2007. Ms SF's statement identified 26 October 2006 as the date upon which the complainant disclosed the kissing incident (count 2). If so, that was after the complainant had disclosed it to C and also after the first police interview with the complainant. Assuming that Ms SF’s evidence was otherwise accurate, she may have been wrong about the date upon which the complainant spoke to her or the complainant may have incorrectly told Ms SF that the complainant had not mentioned the kissing incident to her mother. The appellant contended for the first explanation, that the date given by Ms SF must be incorrect.

[81] The appellant contended that he would have obtained an advantage had the Crown been required to call Ms SF because, as a family day care professional, she would likely have asked questions which would have elicited any further allegation of wrongdoing by the complainant against the appellant, had there been any such further allegation.

[82] It does not appear to me that the appellant would have obtained any sensible forensic advantage had the Crown called Ms SF. In the complainant's pre-recorded evidence she acknowledged that she had told Ms SF only about the kissing incident. The appellant obtained that advantage. The most significant effect of the Crown calling Ms SF would have been to adduce further evidence of a complaint in terms which were largely consistent with that of C. To the extent that Ms SF's evidence was inconsistent with that of C it was adverse to the appellant. Ms SF said that all that the complainant told her was that "her dad had tickled her on the back and stomach and kissed her on the lips . . . the complainant told me her mother did not know about the kiss on the lips and that her dad had told her not to tell her mother . . ." That evidence may have been damaging to the appellant because it omitted the suggestion in C's preliminary complaint evidence that allowed for the possibility that the kiss was an unwilled act or done under a mistaken belief that the appellant was kissing his girlfriend.

[83] The appellant also argued that Ms SF’s evidence that the complainant disclosed to Ms SF that she was not happy about not being able to see her father was consistent with the defence he wished to raise that C was stopping the complainant from seeing him for no reason and at a time when she was not aware of the kissing incident. This argument is related to the appellant’s broader arguments that he suffered a miscarriage of justice as a result of his lawyers’ conduct in persuading the primary judge to exclude evidence about domestic violence orders made against the appellant and about threatened or actual violence by him. For reasons which I will discuss under the next heading I do not accept that argument.

[84] I am not persuaded that the appellant sustained any miscarriage of justice as a result of his lawyers’ failure to take steps aimed at requiring the Crown to call Ms SF as a witness at the trial.

Ground 6: my solicitor failed to follow any of my instructions as to my defence, he dismissed witness accounts as hearsay when they were not, he failed to support me in my concerns regarding prosecution. I was misrepresented.

[85] The appellant argued that his solicitors at trial failed to follow his instructions in a number of respects, as a result of which the trial miscarried.

The exclusion of evidence concerning alleged or actual violence or threats of violence by the appellant

[86] The appellant contended that his solicitor disobeyed his instructions by instructing the appellant's defence counsel to make submissions that the taped interviews with the complainant and with the appellant should be edited in a way that removed any reference to the history of domestic violence orders obtained by C against the appellant and the basis for those orders. The appellant argued that this evidence, which he said was removed contrary to his instructions, supported an argument he wished to advance that the complainant had fabricated her complaints against the appellant. He argued that the complainant gave truthful evidence about the kissing incident (which was consistent with his own evidence) but that when the complainant became aware that the appellant knew that the complainant had disclosed that incident, and the appellant had sent C a text message saying that he would come to C's home to see what the position was, the complainant became fearful of the appellant becoming violent. On the argument advanced by the appellant, that formed part of a motivation by the complainant to make false statements in her second police interview.

[87] The transcript of the hearing before Kingham DCJ on 21 November 2007 demonstrates that, in the appellant's presence, defence counsel argued that references in the s 93A tapes and in the records of interview to indications of violence or potential violence by the appellant to C and their children should be omitted from the evidence adduced at trial. The point is sufficiently made by reference to one example. Defence counsel argued that the following statements in the interview of the complainant on 18 October 2006 should be removed:

"[Police officer] Well do you understand why your Mum gave me a call, its just 'cause she's really concerned, she knows what your Dad's like sort of thing. Obviously she's wanting to be really protective of you.

…

[Complainant] I'm scared when my Dad finds out about this he'll come over here

…

He used to be really violent to my Mum".

[88] Evidence of that kind was excluded on the basis, submitted by defence counsel and in many respects conceded by the prosecutor, that it was highly prejudicial to the appellant.

[89] I would accept the submission for the respondent, that objectively, material of that kind had the potential to be very prejudicial to the appellant and that the conduct of the appellant's defence counsel in arguing for the exclusion of the material was capable of a sensible and reasonable explanation on that basis.

[90] In R v G,¹⁴ Fitzgerald P and Thomas J said that the statement by Gleeson CJ in R v Birks¹⁵ that "As a general rule . . . it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence" should be read as indicating "no more than that such conduct by counsel will not automatically entitle an accused person to a retrial in every case; it does not mean that such conduct will never have that result; whether or not a new trial should be ordered will depend on the circumstances of each case; a new trial will generally not be appropriate unless incompetent or improper conduct by counsel deprived the person convicted of a significant possibility of acquittal, such as for example when the accused is deprived of the opportunity to present his defence . . ."

[91] In R v NE,¹⁶ this Court examined the authorities touching on the question of what an appellant must prove in order to establish that there has been a miscarriage of justice by reason of the conduct of the defence. The ground of appeal relied upon by the appellant in that case was that a miscarriage of justice had occurred because the appellant was not properly advised as to whether he should give evidence on oath at the trial. Davies JA, with whose reasons McMurdo P and Chesterman J agreed, said:

"What an appellant must prove, in a case such as this, is that the advice of counsel not to give evidence, which resulted in the appellant's failure to give evidence, deprived the appellant of a chance of an acquittal that was fairly open. When there has been flagrant incompetence on the part of counsel the burden of proving that may be easily discharged; where for example, the advice was given because of a blatant error and, but for that error, the advice would have been otherwise. It is more difficult to discharge where the alleged error of counsel said to result in the miscarriage involves a decision based on a forensic choice; for example, whether in the circumstances, the appellant's giving evidence will be more likely to help or harm his case. As Gleeson CJ put it in TKWJ v The Queen:

"But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness."

The question, in the end, is an objective one; whether the decision or choice complained of is capable of reasonable explanation. If it is, it cannot be said that an appellant was thereby deprived of a chance of acquittal that was fairly open."

[92] In R v Sheppard,¹⁷ McMurdo J, with whose reasons de Jersey CJ and White J agreed, referred with approval to Gleeson CJ’s statement in R v Birks which was quoted in R v G and to Gleeson CJ’s further observation that the courts are extremely cautious in relation to claims that a miscarriage of justice has been occasioned by the incompetent conduct of the defence case. McMurdo J nevertheless rejected the submission for the respondent that the Court should look only at the record of the trial and discover from it alone if there was an apparently rational explanation for the conduct of the defence case. His Honour observed that whilst the assessment of the conduct of the case remains an objective one, the assessment must be made upon the factual premises of what challenge could have been made to the prosecution evidence and what evidence could and would have been given by the appellant had he been so advised.

[93] The respondent submitted that in R v ON¹⁸ this Court confirmed that the assessment of the conduct of the defence counsel at trial is an objective one. R v ON concerned the propriety of joining certain counts in one indictment, the admissibility of evidence of a recorded pretext telephone conversation, the propriety of directions to a jury as to the use they could make of such evidence, and the trial judge's failure to exclude or give particular directions as to the use of other evidence. The Court regarded as irrelevant an affidavit by trial counsel which said that his failure to make any application or objection or seek redirections "was not for a tactical purpose".

[94] Holmes JA, with whose reasons Muir JA and I agreed, cited High Court authorities dealing with that question¹⁹ and then quoted a passage in Gleeson CJ’s judgment in Nudd v R²⁰ which included the following statement:

“There could be circumstances in which it is material to know that a course was taken contrary to instructions. The possibility of a need to know the reason for conduct cannot altogether be eliminated. In general, however, as far as justice permits, the enquiry should be objective.”

[95] Her Honour concluded that there was "no feature of the present case which suggests that this Court should go beyond an objective consideration of whether counsel's actions were consistent with obtaining a forensic advantage in considering the ultimate question of whether there was any miscarriage of justice."

[96] Consistently with that conclusion, there may be exceptional cases in which an appeal court’s consideration of the question whether a miscarriage of justice was occasioned by the conduct of an accused person’s lawyers may be informed by evidence which explains why that conduct occurred, rather than solely by an objective analysis. However, if such exceptional cases may be found to exist they are not established under this ground of appeal, in my opinion.

[97] The appellant swore that defence counsel departed from the instructions which the appellant had given to his solicitor. (His arguments and affidavits assumed that the solicitor had given the instructions upon which counsel acted.) The affidavit by his solicitor concerning the instructions he was given on this topic at the s 95AA hearing on 21 November 2007 before Kingham DCJ was unclear. Assuming in the appellant's favour, however, that defence counsel made a forensic decision, contrary to the appellant’s instructions, to submit that references to domestic violence should be excluded, I would nevertheless conclude for the reasons I have given that this was clearly an objectively justifiable forensic choice and that it did not result in any miscarriage of justice.

[98] Defence counsel also objected to some evidence that seemed to favour the appellant, such as favourable expressions of opinion by the complainant about the appellant’s state of mind when he did some of the things of which she complained, and which the prosecutor was prepared to adduce as part of the Crown case. I am not persuaded that the exclusion of this apparently inadmissible evidence resulted in any miscarriage of justice.

Alleged admission by complainant to Ms P and the appellant

[99] A related contention by the appellant was that his lawyers failed to follow his instructions to pursue a case that C (and, on another argument, C's brother T) persuaded the complainant to give false evidence, she having become amenable to that course as a result of what the appellant argued was her misplaced fear of the appellant. Most significantly, the appellant argued that he did not call evidence of an admission to that effect made by the complainant in the presence of the appellant, Ms P, and A because his lawyers wrongly advised him that the evidence was inadmissible.

[100] The respondent submits that the appellant is bound by the way the matter was conducted and should not now be permitted to run the case on a different basis; that the evidence which the appellant now seeks to adduce was clearly available to the defence at the time of the trial; and that the appellant chose not to give nor call evidence.

[101] That submission raises the question whether the appellant has in this respect demonstrated such an exceptional case that the Court should take into account the reasons why the contentious evidence was not adduced, rather than confining itself to an objective assessment. The appellant’s own evidence was to the effect that he instructed his lawyers not to adduce this evidence only because he was advised that it was inadmissible, advice which the appellant contended was wrong in law. On the other hand there were apparently good forensic reasons for not adducing the evidence, including the circumstances in which the complainant’s alleged statement was made, the vague terms of that alleged statement, the ramifications of other charges against the appellant, the possibility that the necessary cross-examination of the complainant might have put the appellant’s own character in issue, the apparent absence of any statement on the topic by A, and the possibility that the Crown might call A (a proposed witness in one of the other charges against the appellant) to give a very different version.

[102] Because I consider that there should in any event be an order for a new trial, in which event this question may be re-visited, I think it preferable not to rule upon the respondent’s submission. It appears useful, however, to decide whether the suggested evidence of the complaint’s alleged statement would have been admissible.

[103] The appellant swore that on 26 August 2007 he and his then partner Ms P met both of the appellant's daughters, the complainant and A, at their request. The appellant swore:

"I asked [the complainant] where the stories had come from (the charges I am now appealing). The complainant replied in front of Ms P herself a mother that "Mum has told me what to say"."

[104] The appellant swore that he replied by telling the complainant to tell the truth in court and she had nothing to be afraid of. (He swore also that A told him and Ms P that C, with the encouragement of C’s brother ("T"), had helped the complainant to prepare the statement of her evidence against the appellant. I put this to one side because the evidence did not establish that A claimed personal knowledge of those matters.)

[105] Similarly, Ms P said in her oral evidence in the appeal that she had sent to the appellant’s solicitor before the trial a copy of her signed statement, in which she stated as follows:

“On the Saturday night 25th August 2007, [the appellant] and I were at our residence ..., when [the appellant] got a call from his eldest daughter [A] and youngest [the complainant], he returned their call using my mobile phone as his had no credit. They were ringing because they wanted to see their father, so the next day, Sunday the 26th they called again and we had arranged to go down and see them. As my van was broken down I borrowed my mothers Mercedes and [the appellant], my 5yr old son [Z] and myself went down and picked them up from their place in ... and drove to ... shopping centre. [The appellant] was sitting in the back seat between the two girls, my son and I were sitting in the front seats facing them. We were all talking about things, and when [the appellant] asked [the complainant] why she said the things she did (in her 2nd statement) she replied with "mum told me what to say" and [the appellant] replied with "what ever happens just tell the truth and don’t be scared".

[106] Ms P adhered to that evidence under cross-examination by counsel for the respondent in this Court.

[107] I interpolate here that the appellant swore that as a result of what the complainant and A had told him he verbally abused C’s brother, T. It appears that the appellant was subsequently charged with breaching a domestic violence order on which T was a named person; with assaulting T; with further breaches of a domestic violence order involving contact with his daughter A; with breaches of bail conditions as a result of having contact with the complainant; and with attempting to pervert the course of justice. However the evidence before this Court about the terms and bases of these charges and the evidence said to support or rebut them is very vague.

[108] The appellant swore in various affidavits that he or Ms P told his solicitor “both verbally and by statement” that she was present in the car when the complainant said, "Mum told me what to say" and that his solicitor “dismissed this as hearsay." The appellant swore that defence counsel at trial said that the evidence was not hearsay "but as we had been of the understanding it was hearsay [Ms P] had sat in on the trial. [Defence counsel] only said it wasn't hearsay when I asked him maybe two - three days into trial."

[109] In the appellant's written submissions, he stated that Ms P’s written statement was received by his solicitor on 8 January 2008. The appellant’s solicitor swore to his receipt of that statement in December 2007. Both dates were after the complainant had given her pre-recorded evidence. The appellant's affidavits do not identify the date or dates upon which he first told his solicitor of the evidence that he and Ms P could give of this alleged conversation, but it seems from an affidavit sworn by his solicitor that it was probably before the complainant gave her pre-recorded evidence. The appellant’s solicitor swore in his second affidavit that:

"28. The instructions from [the appellant] were quite clear. What he said was:

…

(l) In addition, he said [the complainant] made admissions that she had fabricated the indecent nature of the tickling instances. The evidence of this could not be disclosed. On instructions [the complainant] was cross-examined about this at the pre-recording @ p 23, l 35ff."

[110] It is not clear whether the statement that this evidence "could not be disclosed" was intended to convey that the appellant had given instructions to that effect, or whether that was the solicitor’s own decision (whether because the evidence was thought to be inadmissible or because it was thought to be prejudicial, or both). This passage suggests, however, that though Ms P's written statement may not have been given to the appellant’s solicitor until after the complainant had given evidence, the appellant had given instructions to similar effect before then. That is consistent with the evidence of defence counsel’s advice and with the oral evidence of the appellant’s solicitor: he agreed that he advised the appellant that the evidence in Ms P's statement would be inadmissible because it was hearsay.

[111] The appellant’s solicitor swore in his second affidavit that he had obtained written instructions that the appellant would not give or call evidence. He exhibited a diary note referring to those instructions. In his third affidavit he swore that at the close of the prosecution case the appellant instructed him that he did not wish to give evidence or to call Ms P, A, or Ms SF. (A had been subpoenaed to appear by the Crown and was available to give evidence. Ms SF had also been subpoenaed to appear.) Written instructions were exhibited. The form includes the following:

"Client's version: See instructions via correspondence etc.

Notes

Questions as to defence giving evidence.

1. [The appellant]

2. Ms P

3. Ms SF

4. [A]

Advise of counsel is that evidence that he wishes to give and his witness would not be admissible and not assist his case. Given pending charge of [A] it would be highly dangerous to call her. We are being offered a "poisoned chalice" by the prosecution in that they have subpoenaed [A]."

[112] A subsequent section of the form records instructions signed by the appellant that none of the appellant, Ms P, A or Ms SF should be called.

[113] The form is ambiguous concerning the particular evidence which counsel advised was inadmissible and which would not assist his case, but it is consistent with the other evidence that the appellant’s lawyers advised the appellant that his and Ms P’s evidence of the complainant’s statement to them was inadmissible.

[114] For reasons to which I now turn, I consider that the evidence would have been admissible at the trial if the complainant had denied making the statement attributed to her after the occasion and terms of the statement had been put to her in cross-examination.

[115] There was other evidence from which the jury might have inferred that C was hostile to the appellant and had the opportunity to coach the complainant. It would have been open to the jury, had it accepted the truth of the evidence of Ms P and the appellant, to conclude from it that the complainant’s mother had coached the complainant to make the statements in her second police interview implicating the appellant in counts 1, 3 and 4.

[116] In R v LSS²¹ this Court decided that in such circumstances the admission of evidence of this character is not precluded by the rule against hearsay. However, Nicholls v The Queen²² established that before such evidence may be adduced the occasion and terms of the complainant’s alleged statement must first be put to the complainant in cross-examination. That is necessary in order to comply with the rule in Browne v Dunn²³ and to found a basis for the admission of a prior inconsistent statement as the truth of its contents under ss 18 and 101 of the Evidence Act 1977 (Qld).

[117] Reference to the complainant's pre-recorded evidence, which I summarised earlier, demonstrates that there was no cross-examination of her to the effect that she had fabricated any part of her evidence. The highest it was put was that her mother and family "were trying to brainwash you against Dad". The complainant denied remembering saying that to the appellant. She denied that was what she thought her mother and family were doing. She denied that her mother said to her that her father was not a nice man. The complainant's alleged statement to the appellant and Ms P that "Mum told me what to say" was not put to the complainant; nor was the occasion of that alleged statement identified by the cross-examiner.

[118] If, as the evidence suggests, defence counsel told the appellant after the complainant had given evidence that this evidence was inadmissible, in my opinion that advice was correct; but it was correct only because the occasion and terms of the complainant’s alleged statement had not been put to her in cross-examination in her pre-recorded evidence and denied by her.

[119] At the trial, after the complainant had given her pre-recorded evidence it remained open to the appellant to apply for an order that the complainant be re-called to give further evidence for the purposes of compliance with s 18 of the Evidence Act 1977 (Qld).²⁴ It is inappropriate to speculate whether the trial judge would have made such an order. It is sufficient to observe that, bearing in mind the seriousness of the charges against the appellant, there is a possibility that such an order would have been made; that the complainant would have denied the statement alleged against her by Ms P and the appellant; and that their evidence would then have been admissible.

Proposed orders

[120] It is not necessary to rule upon the appellant’s numerous applications to adduce evidence in the appeal.

[121] I would grant the appellant leave to amend the notice of appeal in accordance with the appellant’s letter filed on 6 November 2008, allow the appeal, set aside the convictions on each count, and order a new trial.

[122] WILSON J: I have had the advantage of reading Fraser JA’s thorough analysis of the issues raised on this appeal. I respectfully agree with the orders proposed by his Honour, and with his Honour’s reasons for judgment.

Footnotes

1. I have excluded some statements which substantially repeat statements in these passages. ↩

2. The respondent’s counsel cited R v Sakail [1993] 1 Qd R 312 at 318/L35-39/L11 per Macrossan CJ. See also HML v The Queen (2008) 235 CLR 334 at [111], [135]-[172] per Hayne J. ↩

3. HML v The Queen (2008) 235 CLR 334 at [41] per Gummow J, at [63] per Kirby J, at [132], [196], [247] per Hayne J, and at [506] per Kiefel J. ↩

4. (2008) 235 CLR 334 at [121]. I have omitted the citations. ↩

5. HML v The Queen (2008) 235 CLR 334 at [128] per Hayne J. ↩

6. HML v The Queen (2008) 235 CLR 334 at [158] per Hayne J. ↩

7. HML v The Queen (2008) 235 CLR 334 at [201] per Hayne J; KRM v The Queen (2001) 206 CLR 221 at [39] per McHugh J. ↩

8. R v BJC (2005) 13 VR 407 at 420 [37] per Byrne A-JA, a passage quoted by Heydon J in HML v The Queen at [345]. ↩

9. See, eg, KRM v The Queen (2001) 206 CLR 221 at [37] per McHugh J. ↩

10. R v S [1999] 2 Qd R 89 at 95. See also R v J (No 2) [1998] 3 VR 602 and R v Ellul [2008] VSCA 106 at [25]. The direction may be required though, for example, in a case where there is a danger that generalised evidence of misconduct might improperly be used by a jury to conclude that an accused is likely to be guilty of a particular offence charged, or "to conclude the particular from the general": see [1997] 1 Qd R 383, (1999) 110 A Crim R 221 at 228, and [2006] QCA 21.