Court of Appeal (Qld)|2006-10-20|Before: Jerrard JA, Atkinson and Douglas JJSeparate reasons, for judgment of each member of the Court, each concurring as to the orders, made
Jerrard JA, Atkinson and Douglas JJSeparate reasons, for judgment of each member of the Court, each concurring as to the orders, made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE
–
CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE–CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL– OTHER IRREGULARITIES – appellant/applicantwas charged with 42counts of various offences mostly involving sexual offences against children– jury convicted appellant/applicantof 20 counts, acquitted on somecounts and could not agree on others – during the trial theappellant/applicant complainedthat the trial judge, when she was a practisingbarrister, had had dealings with the appellant/applicant’s brother –trial judge refused to recuse herself – whether the trial judge shouldhave declined to presideCRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE–CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL– OTHER IRREGULARITIES – whether
the verdicts were inconsistent and
rendered the convictions unsafe and unsound
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE
–
CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL
– OTHER IRREGULARITIES – whether
the decision by the
appellant/applicant’s counsel during the trial not to recall certain
witnesses and not call other witnesses
deprived the appellant/applicant of a
defence
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE
–
CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL
– OTHER IRREGULARITIES – where
some jurors had seen the
appellant/applicant wearing handcuffs during an adjournment – trial judge
directed jury not to draw
an adverse inference from this – trial judge
refused to discharge the jury – whether trial judge should have discharged
the jury
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE
–
CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL
– OTHER IRREGULARITIES – trial
judge received a note from a juror
during the trial that expressed juror’s concern about being intimidated by
other jurors
– neither defence nor prosecution counsel requested that jury
be discharged – trial judge directed jury to focus on evidence
–
whether a miscarriage of justice had resulted from decision not to discharge the
jury
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE
–
CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL
– OTHER IRREGULARITIES – during
trial defence counsel complained
about sleeping jurors and facial expressions of trial judge – trial judge
directed jury to
focus on evidence – whether trial judge erred in not
discharging the jury
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE
–
CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL
– OTHER IRREGULARITIES – whether
sufficient evidence was led to
establish that the appellant/applicant’s signature and handwriting rather
than forgeries appeared
on particular documents
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE
–
CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL
– OTHER IRREGULARITIES – whether
trial judge adequately directed the
jury on appellant/applicant’s assertion that he had been blackmailed
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED
PERSONS –
APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES
– SEXUAL OFFENCES –
appellant/applicant was sentenced to concurrent
head terms of five years imprisonment for the two most serious offences and to
shorter
concurrent terms for the other offences – concurrent sentences
were made cumulative on a seven and a half year sentence imposed
on him for
offences he committed against a different child – whether sentence was
manifestly excessive
Ali v R (2005) 214 ALR 1
[2005] HCA 8, B42 of 2004, 8 March 2005,
followedMacKenzie v The Queen (1997) 190 CLR 348Osland v The
Queen [1998] HCA 75
(1998) 197 CLR 316, consideredR v DAL [2005] QCA 281
CA No
74 of 2005, 12 August 2005, cited
Judgment (169 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL - OTHER IRREGULARITIES - appellant/applicant was charged with 42 counts of various offences mostly involving sexual offences against children - jury convicted appellant/applicant of 20 counts, acquitted on some counts and could not agree on others - during the trial the appellant/applicant complained that the trial judge, when she was a practising barrister, had had dealings with the appellant/applicant's brother - trial judge refused to recuse herself - whether the trial judge should have declined to preside
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL - OTHER IRREGULARITIES - whether the verdicts were inconsistent and rendered the convictions unsafe and unsound
[3]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL - OTHER IRREGULARITIES - whether the decision by the appellant/applicant's counsel during the trial not to recall certain witnesses and not call other witnesses deprived the appellant/applicant of a defence
[4]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL - OTHER IRREGULARITIES - where some jurors had seen the appellant/applicant wearing handcuffs during an adjournment - trial judge directed jury not to draw an adverse inference from this - trial judge refused to discharge the jury - whether trial judge should have discharged the jury
[5]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL - OTHER IRREGULARITIES - trial judge received a note from a juror during the trial that expressed juror's concern about being intimidated by other jurors - neither defence nor prosecution counsel requested that jury be discharged - trial judge directed jury to focus on evidence - whether a miscarriage of justice had resulted from decision not to discharge the jury
[6]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL - OTHER IRREGULARITIES - during trial defence counsel complained about sleeping jurors and facial expressions of trial judge - trial judge directed jury to focus on evidence - whether trial judge erred in not discharging the jury
[7]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL - OTHER IRREGULARITIES - whether sufficient evidence was led to establish that the appellant/applicant's signature and handwriting rather than forgeries appeared on particular documents
[8]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL - OTHER IRREGULARITIES - whether trial judge adequately directed the jury on appellant/applicant's assertion that he had been blackmailed
[9]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - SEXUAL OFFENCES - appellant/applicant was sentenced to concurrent head terms of five years imprisonment for the two most serious offences and to shorter concurrent terms for the other offences - concurrent sentences were made cumulative on a seven and a half year sentence imposed on him for offences he committed against a different child - whether sentence was manifestly excessive
R v DAL[2005] QCA 281; CA No 74 of 2005, 12 August 2005, cited
[13]
Director of Public Prosecutions (Queensland) for the respondent
[14]
[1] JERRARD JA: On 21 July 2005 CX was convicted of various offences, mostly sexual offences committed against children. On 22 July 2005 he was sentenced to concurrent head terms of five years imprisonment for the two most serious offences, and to other shorter concurrent terms for the other offences. All those concurrent sentences were made cumulative on a sentence of seven and a half years imprisonment imposed on him on 21 September 2004, for sexual offences of which he was convicted after a trial, committed against a different child,[1] E. CX has appealed against all the convictions recorded on 21 July 2005, and sought leave to appeal against the severity of the sentences.
[15]
[2] CX conducted his appeal against his convictions in person, with some assistance at the bar table from his twin brother JZ, the father of E. JZ also assisted CX with preparation of a comprehensive written argument. The written and oral submissions focused on the appeal against the convictions rather than the sentence application, but CX did file an application challenging the sentences.
[16]
[3] CX was convicted on 21 July 2005 of 20 counts on a 42 count indictment. He was acquitted on some counts, and the jury could not agree on others. Eighteen of the convictions were in respect of B, his daughter. The majority of those were for offences of unlawfully and indecently dealing with her, first when she was a child under 12, and then when she was a child under 16. He was also convicted of two counts of having unlawfully assaulted her and done her bodily harm, both of which offences actually happened when she was under 12; and of three counts of having indecently assaulted her. Those latter convictions were for offences committed after she had turned 16 in mid-February 1998. The most serious offences were of attempted rape, committed after she was 16, and for maintaining a sexual relationship with her when she was a child, between 1 July 1989 and 1 July 1997. She was under the age of 12 for a portion of that period. The two convictions for offences against victims other than B were in respect of two of her friends. Both convictions were for offences of indecently dealing; one involving a friend, C, who was then under 12, and one involving a friend, D, who was under 16 at the time.
[17]
[4] In very broad outline the prosecution called evidence from B's sister, A, who is 12 years older than B. The thrust of her evidence was that CX had sexually abused her from when she was 13 years old, at the various addresses at which the family lived in New South Wales, and which abuse continued after the family moved to Tamborine in Queensland when she was 17 or 18. It stopped when the family moved to a residence at Cordalba when A was about 20, and when A refused to submit any longer to his indecent touching. That refusal resulted in his assaulting her with a hoe, and that assault was the basis of the only charge involving A on which CX was indicted before the jury, and which was joined with the charges involving B, C, and D. The charge involving A, count 1 on the indictment, alleged CX assaulted A and did her bodily harm, with the circumstance of aggravation that he was armed with an offensive instrument.
[18]
[5] Continuing the broad outline, counts 2 to 39 on the indictment alleged offences committed against B, counts 40 and 41 offences committed against C, and count 42 an offence against D. Count 40, involving C, alleged an offence committed against that child on the same occasion as an offence committed against A, which was count 14. Count 41 alleged an offence against C at CX's then farm, but not in the presence of B. Count 42 alleged an offence against D when she was visiting CX's residence to stay overnight with her friend B.
[19]
[6] B's evidence described a developing sexual relationship between CX and her, beginning when she was aged about 6 and living at their Tamborine residence, and continuing at residences at Cordalba, Nerang, Mermaid Waters, and Bonogin; she had turned 16 when living at Mermaid Waters and was 17 when they moved to Bonogin. As was conceded by defence counsel during the cross-examination of A, the offending behaviour B described was remarkably similar to the offending behaviour and developing sexual relationship A described,[2] although none of the sexual offending alleged by A was charged as an offence against CX on the indictment. That offending behaviour described by both daughters involved CX rubbing his hand between the cheeks of his daughters' bottoms, progressing to his rubbing his penis between the cheeks of their bottoms; and then in A's case, developing into her performing fellatio on him, to his rubbing his penis against her groin, and finally to his attempting to have sexual intercourse with her.
[20]
[7] CX swore in his defence in evidence that he had not committed any of the alleged abuse, and that the accusations by A and B were the product of a conspiracy hatched between A, B, their mother - CX's wife - and her sister. The object of the conspiracy was to have CX imprisoned, to have A and B receive compensation from the State of Queensland for CX's alleged offences against them, and for their mother to get effectively all of the assets of their marriage. CX volunteered in his evidence-in-chief that in his opinion, his wife's motive was embarrassment and shame, resulting from his claimed discovery that she was a lesbian. CX called his brother JZ, and JZ's wife, HZ, both of whom swore to having heard the four asserted female conspirators discussing a plan to get compensation (on an un-revealed basis), apparently from CX. JZ and HZ had been visiting the CX household when they both happened to hear that conversation, apparently in or about May 2001. The asserted conspiracy was the reason counsel for CX supported the joinder of the charges.
[21]
Confessions alleged by the Crown to his daughters and his wife
[22]
[8] The prosecution case was that the allegations first came to light when A told her husband about them, shortly before Fathers' Day in 2001. On that same day she told B, who was living with A and A's husband. In answer to questions from A, B eventually revealed that she too had been abused by their father, and more details of that abuse were revealed by B to A over the ensuing few days. On or about Fathers' Day 2001, A telephoned her parents' residence, and told her mother of the abuse she and B had experienced from CX. The prosecution case was that CX, when taxed by his wife with what A had just told her mother on the phone, admitted in a general way to his wife that he had abused their daughters, explaining that he too had been molested when he was a child. A's evidence was that on the day she first told her mother by telephone of the abuse, her father then came on the phone, and inferentially acknowledged to A having abused both A and B, "because he wanted to" (abuse them).
[23]
[9] The next day his wife visited A and B, and more details were disclosed to her, including that CX had forced fellatio upon B, and had attempted sexual intercourse with her. When his wife angrily spoke with CX about that, following the visit to her daughters, CX also admitted that abuse. His wife then ended the marriage, and moved to her sister's residence.
[24]
[10] CX denied making those claimed admissions, contending they were just part of the false evidence put forward by the conspirators. Exhibit 2 at the trial was a short typed letter dated 11 September 2001, addressed to A and B, and saying inter alia that "I have hurt you both", and "please forgive me". It was signed "Dad"; CX said he did not send it.
[25]
[11] After his wife left him, CX tried to speak with her at her sister's home, but his wife would not talk to him. He telephoned a friend of long standing, a hotel manager whom he had known since they were boys of 12 or 13, and whom he still saw once each four to six weeks. That friend's evidence was that CX told him that CX's wife had left him, and that CX said "I've been molesting my daughters"; CX added "I think it all stemmed from when I was molested when I was a kid. Can I see you?"[3] The friend, who was called as a witness by the prosecution, declined to see CX; and the friend denied the suggestion put in cross-examination that what CX had said was "I've been told that I've been molesting my daughters".
[26]
[12] After that unsuccessful approach, CX spoke on the phone with his brother-in-law, on one of his equally unsuccessful attempts to speak with his estranged wife at her sister's home, and the brother-in-law's evidence was that he suggested that CX "put something in writing" to his (CX's) wife, because she would not talk to CX. The brother-in-law's evidence was that CX thought that was a good idea, and some two days CX later telephoned to say he had written a letter, which he asked the brother-in-law to pick up. The brother-in-law did that, on the brother-in-law's recollection on 8 September 2001, and he described CX as in a very poor state when the brother-in-law saw him, crying and upset. CX said "I've done some terrible things", and that he had rung his best friend (the hotel manager, whom he named in the conversation), and had told his friend that "I'm a paedophile and that I've interfered with my daughters and can he help me" and (the friend) had said "No I will not have anything more to do with you".[4] After CX told his brother-in-law all this, the brother-in-law spoke with CX, and read the letter, and the brother-in-law's recollection was that CX added, in hand writing at the end of the typed letter to CX's wife, the words "I love you forever and beyond, [name of CX]".
[27]
[13] It was put to the brother-in-law, but denied by him, that he had helped in the composition of the letter. The brother-in-law's evidence was that it had been typed in full when the brother-in-law received it, and was given to the brother-in-law in a kitchen, in which there was no computer, so the brother-in-law could not have sat down, as suggested, and helped compose it on the computer. The point of that suggestion in cross-examination was that that letter, Exhibit 20 at the trial (dated 8 September 2001), expressed "bottomless sorrow" and regret for A and B, apologised in the "most profoundest way", and described the author as a classic case of a dysfunctional family that had no boundaries of touch and no feelings of intimacy, who had been sexually penetrated many times by three of his uncles, and encouraged to participate in sexual touching with one of his aunties. CX denied in his evidence that he was the sole author of the letter, suggesting his brother-in-law had written part of it. He acknowledged having written the descriptions of the sexual abuse of himself as a child, and of the incitement to deal sexually with an aunt. The brother-in-law agreed in cross-examination with the proposition that he had suggested, on the telephone, that it was important CX say he was sorry and admit to having done something wrong. He recalled having said to CX "Look, obviously you've done some terrible things and, you know, I hope you can get help."[5] The implication from that cross-examination and CX's evidence was that the brother-in-law had supplied the potentially incriminating parts of Exhibit 20.
[28]
[14] Exhibit 20 did not contain any explicit admission of sexual abuse of either A or B, but no other topic is suggested by its contents on which CX could have been expressing the profound apology to his wife and bottomless sorrow and regret for A and B. Other typewritten letters followed, dated in September and early October 2001, and written in the same apparent style; although the acknowledgements of any wrong doing become fewer and much harder to find in those, and the descriptions of the author's grief and suffering more predominant. CX acknowledged having written some parts of the contents of each of those, but contended that some other person or persons had entered the remainder of the contents, when using his computer.
[29]
[15] The prosecution also led evidence of a confession to F, CX's son - who was two years older than B - and who had been living with CX and his wife up until Fathers' Day 2001. F learnt the night before from A of the allegation that CX had abused A, and F did not go home that night. The next day, Fathers' Day, he went back, packed up his things, spoke with his father, said goodbye to his mother, and left the home. His evidence was that on that day CX:
[30]
"[S]eemed pretty down and he told me that things had happened in his childhood that made him the way he is and that he was sorry for what he had done and he'd seek counselling; and then he started to go into detail about some of the things he had done to [B]."
[31]
"[H]e told me that he'd exposed her backside and rubbed his penis on her backside and when he said that, I - I kind of made it clear that I didn't want to hear any more. I stopped him right there and left it at that and then said goodbye to Mum and walked out."[6]
[32]
[16] It was put in cross-examination that CX had told F that day that things had happened to CX when CX was a boy, which might have contributed to his "temper issues"; with which suggestion F agreed. It was also put that CX had not said he rubbed his penis on B's "backside", but F insisted CX had said that.[7] F denied the suggestion that he was simply attempting to strengthen B's case.
[33]
[17] On a date not clarified in the evidence, CX spoke with his wife at her sister's residence, and, apparently in answer to her questions, denied having molested A and B. On 30 October 2001 A and B rang CX's residence, and a conversation ensued. At first it was between A and CX, and then B took over. A tape recorded the phone call, and what is striking about it is more what was not said than what was said. It is apparent from the transcript[8] that A and B had been told that CX had denied abusing them, and that CX had described B - apparently to other family members - as sexually promiscuous. Both A and B appear from the transcript to have been outraged by CX's denials that he had abused them, and by his description of B.
[34]
[18] The recorded conversation began with A explaining that she would make it "really short and sweet", and that if CX cut her off or hung up the telephone, she would immediately go to the police. She continued "Now, [B] and I have heard your latest claim that you've done nothing to us. And that we're lying and that [B] is basically a slut. Okay...All I've got to say is, how dare you?"[9]
[35]
[19] That introduction conveys the tone of A's statements throughout the conversation; she expressed great anger at the denials, but insisted CX remain on the telephone, with the threat that if he did not, she would complain to the police. By implication, the complaint would be of the abuse she knew, and he knew, he had practised upon her.
[36]
[20] For his part, CX did not once expressly deny or ask for any clarification of any allegation A made, and his response when asked how he dare say that he had done nothing to his daughters, and that [B] was "a slut", was to say "I didn't say that".[10] That response at the beginning was consistent with his position throughout the conversation; he did not explicitly deny the abuse, he attempted to deflect her anger, he said he was misquoted, and he said he could not recall the things happening of which he was accused, first by A, and then by B. B demanded that CX apologise to them in writing, admitting what he had done, and not attempt to have any more contact with their mother. CX referred in the conversation with A to "the letters", which he said A "surely would have read", and which he described as "letters of shame and sorrow".[11]
[37]
[21] When B came on the telephone, CX spoke of his innocent parental touching, which B asked him to define. CX suggested that things were being taken out of context, and B challenged him as to what was taken out of context. That led to B quoting CX as having said, apparently to his wife, "How possibly could I make her suck my cock?", and to B recounting circumstances in which she said her head would be held while his penis was moved in and out of her mouth, and that in turn led to the derisory comment by B "Innocent parental touching!" CX's responses to that included a denial of having forced B to suck his penis, but no explicit denial of fellatio without force; and to an admission that he had rubbed B on her bottom; according to him, at her invitation. A little later, when B said that CX had attempted to penetrate her vagina, and had damaged her, CX replied to those allegations that "it's not a matter of denying [indistinct]. It's just a matter of trying to remember"; and he said that he had told their mother "I can't accept or deny what you're telling me because I just don't know - I can't remember."[12]
[38]
[22] The upshot of it all was that A and B made complaints to the police in February 2002, not having received any written apology from CX. CX's explanation in evidence of the telephone call was that the tape had been tampered with and edited; that there were four of those phone calls; that he had denied committing any abuse in the first calls; and that the tape was a compilation of those calls. However the general integrity of the tape recording was really conceded, in the leading question asked of him by his own counsel in his evidence-in-chief, namely whether there was any reason why he did not deny some of the specific allegations that were put him. His answer included:
[39]
"Well, there was not a matter of denying it. Just never happened and you can't deny something that - how can you deny something that didn't happen? It just didn't happen and I was just - just talking around it because they were trying to get me to deny something."[13]
[40]
[23] That last remark was immediately followed by the statement that they were trying to get him to admit something. But the quoted remark was an accurate description of a telephone conversation in which CX understood very well that he was being challenged to deny that he had abused A or B, which challenge he was at pains to deflect and avoid. The jury were certainly entitled to take that view of the conversation, and to take CX's statement in that part of his evidence-in-chief as confirmation of it. Altogether, the prosecution led simply too much evidence of acknowledgments made by CX in September and October 2001 of having sexually dealt with both his daughters for his various claims of conspiracy, claims of editing of the audio tape, claims of fabrication of typed and handwritten documents, and claims of being misunderstood, for those claims to provide any credible response to those admissions by him. There is simply too much consistency among the contents of the typed letters, the reference to those letters in the taped phone call, the first typed letter with its description of abuse of him as a child, the descriptions of that abuse given to his lifelong friend, to his wife, and to his son, and his cowardice when challenged by A to explain why he denied abusing her, for the jury to reach any rational conclusion other than that CX had made those confessions and did so because they were true. A conspiracy to falsely accuse him would not explain why he answered as he did to his daughters on the telephone, nor why he wrote as he did to them and his wife, nor why he spoke as he did to his friend, to his brother-in-law, to his son, and to his wife. Accordingly, the trial on the counts involving his daughters was a trial in which the jury were entitled to conclude that the fact of an abusive and exploitative relationship, particularly with B, was comfortably established by CX's oral and written statements, and the critical issue on each specific count was whether that abuse had happened in the specific manner alleged on the specific occasion charged. It is apparent from the verdicts that the jurors applied a high standard, as they had to, when answering that question on each count.
[41]
[24] CX's grounds of appeal principally focused on the process of the trial, rather than on the evidence led in support of the counts, or on the merits of his convictions on 20 of those. His original ground of appeal was limited to a broad complaint that those convictions were unsafe and unsatisfactory and not according to law, but he later advanced 11 specific grounds. The first was that the learned trial judge should have disqualified herself from sitting, because of an acrimonious relationship between his brother JZ and the judge, when she was a practising barrister; CX claimed that the learned judge had "lied about the relationship."[14] The basis of that claim was the assertion that the judge, when a barrister, had been briefed by a solicitor to act for JZ, perhaps in proceedings in the Family Court of Australia, in either late 1992 or early 1993. The solicitor, whom JZ had instructed in the matter, had introduced JZ to the then barrister, now judge; JZ and the barrister did not warm to each other at that first meeting, on JZ's account, and he accordingly asked the solicitor to brief somebody else, which the solicitor did.
[42]
[25] The evidence in support of that account came from JZ, in a document drafted in the form of an affidavit prepared for filing in the Family Court of Australia, but sworn in May 2005. But the solicitor's correspondence with JZ, part of his affidavit, recorded that the solicitor had no recall of any meeting between JZ and the (judge), and no independent recollection of any such meeting. The solicitor did not say she had briefed the judge for JZ, for whom she had acted. The learned trial judge, when invited to disqualify herself at the start of the trial on the basis of that material, remarked that as best she could recall, she last appeared in the Family Court of Australia in 1992, and that the solicitor did brief her from time to time, but the judge had no recollection of being briefed to represent JZ, or of having met him. The learned judge was told that JZ recalled her having said to him words to the effect "Well, Mr Z, I'm not going to forget your name in a hurry. Yes, young fellow, you are facing 14 years for this, so you'd better be telling the truth and be prepared for the worst. Sexual offences carry heavy penalties but we will see what we can do."
[43]
[26] The judge was also told, on the application that she recuse herself, that another of JZ's daughters (not E) had made allegations of sexual offending by JZ, and those matters had gone to trial without convictions being obtained. The possibility seems to have thereby been floated that the brief to the judge may have been to represent JZ on those criminal charges, not in the Family Court. Whatever the position, the learned judge said she simply had no recollection of it at all, and further that she did not believe that she would have spoken as described. If she had, albeit having no recall of it, the judge could not see how that could possibly affect her presiding over a jury trial, in which she would not make the decisions on the facts, on the charges against CX; and in which JZ, at best, would merely be a witness. In addition, it would be very difficult to adjust the court list to find another judge, who was available for the trial, which had been set down for a considerable while. I add that JZ and CX, though twins, do not share a common surname.
[44]
[27] Those were entirely adequate reasons for the learned judge not declining to preside at the trial, and the learned judge would not have had sufficient grounds for declining to sit. Much the same argument was raised in CX's appeal after his first lot of convictions, and dismissed by this Court, which noted that at that earlier trial the judge had not been asked to recuse herself, although the submission that she should have was advanced on the appeal by reason of her asserted dealings, 11 years earlier, with JZ, a person whose surname was not the same as the surname of CX. This Court held in that appeal:
[45]
"In these circumstances no reasonable layman would entertain for a moment the possibility that a judge would be unable to bring an unbiased mind to the discharge of her duties in relation to the trial of the appellant."[15]
[46]
[28] The fact that the judge in this trial was reminded of those asserted dealings and asked not to sit does not take the merits of the application any further. The learned judge later put on record, during a break in her giving directions to the jury, that having had a good opportunity to see JZ when he entered the court and gave his evidence, the judge was utterly convinced she had never seen him before in her life, apart from at a mention of the trial six weeks earlier. She added she had absolutely no earlier recollection of him, or his walk, or his voice, or anything about him, and that was all she could say about the matter.
[47]
[29] In those circumstances no reason has been shown to prefer JZ's affidavit claims to the quite contrary statements made by the learned judge, particularly because the latter derived much more support from the solicitor's absence of any file note, or actual recollection, of any such meeting. No matter how sensitive CX is about this, his brother has not been shown to be accurate, and even if he was accurate, in the circumstances that was not a sufficient reason for the judge to refuse to preside. That ground of appeal should be dismissed.
[48]
[30] Ground 2 is difficult to follow, but I understand it to be an allegation that the learned trial judge was inaccurate in her recollection that the judge had last been involved in matters in the Family Court in or about 1992. This established inaccuracy was said to follow from the assertion in CX's written argument that the learned judge had been "appointed by Justice Bell as children's representative" in a particular matter in the Family Court of Australia in 1995. CX's written argument, apparently prepared by JZ, asserts that the learned judge was then acting in the capacity of an instructing lawyer for a barrister, Mr Pandi, and witnessed an assault by a potential witness upon one of the parties in a dispute in the Family Court. That assault subsequently led to a criminal trial, in which the learned judge was a witness. Mr Pandi was in fact a solicitor acting as a children's representative in the proceedings in the Family Court, and the learned judge would not have been instructing him.
[49]
[31] If all that was alleged in the written outline had been true - and none of this was raised with the learned judge during the trial when the application was made for the judge to disqualify herself - it would be irrelevant as to whether that judge could or should sit. But in fact it is clear the claim is quite wrong. The judgment of this Court in the appeal from the conviction of the potential witness who assaulted the party, Butcher v Woods [1996] QCA 465[16] described the incident, which happened in January 1996. The judgments list by name all of those who were present witnessing the assault, and the learned judge is not described as having been present in any capacity. The examination of the evidence undertaken in that appeal by this Court establishes that the fact or basis for ground 2 is simply wrong, and it is mystifying how such a bizarre and wrong allegation could be advanced. That ground should be dismissed.
[50]
[32] The third ground of appeal, described as being that the evidence was "unsafe and unsound", should be regarded as a submission that there are inconsistencies among the verdicts. The written outline of argument originally presented on the appeal was restricted to reproducing one page of the transcript of argument on 10 February 2006, when the appeal was mentioned in this Court, and during which mention Williams JA observed that it would assist the Court to have counsel make submissions on whether or not there was any inconsistency between the verdicts returned. Despite that suggestion, CX only presented written argument on that ground in his reply to further written submissions from the respondent Director. The Director had been invited during the appeal to assist the Court with submissions on the verdicts in counts 28 to 30, 34 and 35, and whether those were inconsistent. CX responded to those written submissions, but made no written complaint about inconsistencies among any other verdicts. Nor did his oral argument complain of any other inconsistencies; in fact the oral submissions did not really advance any complaint about inconsistencies.
[51]
[33] A number of matters of principle have been settled about the assessment by appellate courts of claims of inconsistent verdicts by a jury.
[52]
1. Where inconsistency is alleged as to verdicts of acquittal and conviction on different counts, the onus is on the party alleging that inconsistency to persuade an appellate court that the different verdicts are an affront to logic and commonsense which is unacceptable, and which strongly suggests a compromise in the performance of the jury's duty, or confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction on the applicable law. Where that inconsistency rises to the point that the appellate court considers that intervention is necessary to prevent possible injustice, the relevant conviction will be set aside.[17]
[53]
2. Whether the verdicts are inconsistent as so described is a test of logic and reasonableness; has the party alleging inconsistency satisfied the court that no reasonable jury, who had applied their minds properly to the facts in the case, could have arrived at the various verdicts?[18]
[54]
3. Respect for the function of the jury requires appellate courts to be reluctant to accept submissions that verdicts are inconsistent in the sense described, and if there is a proper way by which an appellate court can reconcile the verdicts, allowing the court to conclude that the jury performed their functions as required, that conclusion will generally be accepted. It is not the role of an appellate court to substitute its opinion of the facts for one which was open to the jury, if there is some evidence to support the verdict alleged to be inconsistent.[19]
[55]
4. The view may properly be taken in a criminal trial that different verdicts, claimed to be inconsistent, reveal only that the jury followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count, and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, an appellate court can conclude that a jury took a merciful view of the facts on one or more counts, a function which is open to a jury.
[56]
5. Verdicts of guilty and of acquittal will show the required inconsistency where a verdict of acquittal necessarily demonstrates that the jury did not accept evidence which they had to accept before they could bring in the verdict or verdicts of guilty which they did; or when it follows that when acquitting on a particular count, the jury must have accepted evidence that required them to acquit on a count or counts on which they convicted the defendant.[20]
[57]
6. Accordingly, as Callinan J wrote in Osland v The Queen,[21] there is an important distinction between an acquittal and a disagreement by jury; a disagreement on one count is not necessarily inconsistent with a conviction on another, where an acquittal might be, for the reasons explained by McHugh J in Osland. As Keane JA wrote in R v DAL[22] at [23], a failure to agree on a number of charges does not necessarily imply that the jury as a whole entertained a reasonable doubt about the reliability of evidence germane to the count or counts on which it convicted a defendant, in the same way that verdicts of acquittal might, and which would therefore throw the integrity of the guilty verdicts into question.
[58]
7. It is therefore incorrect to describe as inconsistent with other verdicts the (non) result in counts on which a jury has failed to reach a verdict; that failure is indicative only of the inability of the jury unanimously to reach a verdict on those particular counts one way or another.[23]
[59]
8. Further, the failure of a jury to agree on some verdicts on a number of charges may be explicable by reason of the eccentric view of one juror not being satisfied beyond reasonable doubt of all of the elements of the offence in question. That explanation does not necessarily throw the integrity of guilty verdicts on other charges into question.[24]
[60]
9. Likewise, where there are a large number of counts on an indictment, there is scope for merciful disagreement by way of a refusal by some jurors to convict on some of the plethora of charges brought against a particular defendant, even though the jury are not prepared unanimously to acquit.[25]
[61]
[34] The jury returned verdicts of not guilty on 11 counts on the indictment, all alleging offences committed against B; and could not reach a verdict on another 11 counts, of which nine involved B, one A, and one C. The jury also acquitted on either the circumstance of aggravation alleged, or the major counts, on five other charges before the jury. Those different verdicts and outcomes require careful application of the principles described when determining whether there was an unacceptable inconsistency.
[62]
[35] On count 1 the jury acquitted CX of the circumstance of aggravation of being armed with an offensive instrument on the charge of having unlawfully assaulted A on 28 November 1990 at Cordalba. The date was fixed by the evidence of the police officers who had attended that day at the premises where the family lived, that being the same day of the assault A described on her with the hoe. She had sworn she was bruised, and had a clear bruise on her bottom, which she said she had showed those police, and it was put to her there were no such marks. The other evidence, from a police officer who attended the home that day, was that the police spoke with A and no injuries were indicated to the police; and there is no mention of any injury in the police occurrence sheet. A swore that she had fled to a neighbour's property in fear of her father, and the neighbour was called as a witness and recalled A coming and asking to call the police, which A did. The neighbour said she did not see any injuries on A. CX denied the assault, and it is understandable the jurors were not satisfied of an assault with a hoe on that evidence. They were unable to agree on a verdict on the lesser charge of assault without that circumstance of aggravation, but nothing particularly follows from that.
[63]
[36] Count 2 on the indictment alleged unlawful assault of B, doing her bodily harm, when CX was armed with an offensive instrument. The assault was alleged to have happened between 13 February 1987 and 14 February 1991, when B and her family lived at Tamborine. B's evidence was that CX would yell at the children, and hit them with either his hand, a belt, or a walking stick. Count 2 was based on a specific occasion she described when riding on a tricycle and colliding with a toddler's pool, which resulted in her father telling her to go inside, yelling at her, grabbing her by the hair and pulling her around by it, then pulling down her pants and whacking her on the bottom and back with his walking stick. She said she had welts across her bottom and marks on the back of her neck, the welts being big purple bruises. She agreed in cross-examination that she could not remember showing those welts to her mother, although she said her mother would have seen them, and that she had no recall of telling anyone at her school about the marks to her neck or bottom. The jury convicted CX of the lesser count of assault occasioning bodily harm of B, but acquitted of that offence with the circumstance of aggravation. Those verdicts can stand together. The jury were persuaded CX assaulted his daughter with more force than would be justified by parental or domestic disciplining, no matter how firm; the jury were not satisfied beyond reasonable doubt that the assault was with a weapon which left clear marks, and which no other witness described seeing.
[64]
[37] The jurors acquitted CX of counts 3 and 4 of the indictment, which charged offences of unlawfully and indecently dealing with B at Tamborine, and which were particularised as the first and the last occasions amongst an otherwise indistinguishable number of those, occurring when CX took B for a drive in a car at Tamborine and stopped in the bush.[26] On her evidence he got her to get into the back seat, pulled down her pants, and then rubbed her bottom for about 20 minutes. She lay on her stomach on the back seat. That happened at least once a week, and towards the end of their life at Tamborine, he would put Vaseline between the cheeks of her bottom and rub between them, and although he said he was using his hand, she thought he was using his penis. This behaviour had first began - using his hand - when she was about six, and ended - using his penis - when she left Tamborine, aged 8.
[65]
[38] Part of her description of the general circumstances were that CX always drove there in a Fairlane car and part of his defence, put to B in cross-examination, was that by reason of an injury he then had to his right leg, he very rarely, if ever, drove that Fairlane at Tamborine. His case was that because of that injured right leg he drove a light truck during that period and not the Fairlane. Other evidence, including from A, established that he did have an injured leg at that time. The evidence about that injury may have led the jury to a reasonable doubt on the offences alleged to have happened in the Fairlane.
[66]
[39] Counts 5 to 14 were alleged to have happened when the family lived at Cordalba. That, as it happened, was where they were living when CX committed the offences on E (rape, sodomy, maintaining a sexual relationship with a child under the age of 16, and six counts of indecent dealing), committed in the first third of 1991, when E was 15. Regarding count 5, the first offence involving B at Cordalba, that count described the first occasion B could remember when she was taken for a drive into a bush area on that farm, and placed on her stomach on a towel. CX put Vaseline between the cheeks of her bottom, rubbed his penis between them, and ejaculated on her back. He then wiped her back with toilet paper which he carried. She described incidents of that type occurring perhaps twice a week, and said that he would refer to them as having a "do".[27] The jury convicted of that count, and the evidence disclosed no reason why they could not be satisfied beyond reasonable doubt that B's evidence about it was true.
[67]
[40] Count 6 charged an offence of assault occasioning bodily harm of B, committed at Cordalba, and allegedly constituted by CX having "throttled me again" and "belted me with the walking stick,"[28] when CX became angry at B's avoiding him when she was feeding the chickens. She said she once again had welts across her bottom and the tops of her legs, and she agreed that again she had no recollection of showing her mother any marks on her body.[29] The jurors convicted of assault occasioning bodily harm, but acquitted of the circumstance of aggravation on that count, namely being armed with an offensive instrument, the walking stick. Once again that acquittal on the circumstance of aggravation is explicable by the absence of reports of any injury to any other person, and the conviction is explicable on the ground that the jury were satisfied excessive and unlawful force was used, as B described, but not satisfied beyond reasonable doubt that an instrument was used which left welts as described.
[68]
[41] Count 7 alleged an offence of unlawfully and indecently dealing with B when she was under 12. The jurors did not return a verdict on that charge. B's evidence was that the offence was committed after CX had read a story to her, which she regarded as "the most bizarrest thing that I've ever experienced, cos my Dad never read me stories."[30] Afterwards he pulled down the blankets, pulled down her pants, lay on top of her, and rubbed his penis in her bottom. CX emphatically denied in his defence that he had ever read B a story:
[69]
"As much as a loving father that I like to think I am, I've never read her a story."[31]
[70]
The absence of a verdict on that count does not relevantly contradict the basis of any of the verdicts which were returned, whether an acquittal or guilty.
[71]
[42] Counts 8 and 9 involve the same asserted occasion described by B, and in respect of which the jury failed to reach a verdict on either count. The occasion was described by B as when her father was working in a shed at Cordalba, apparently doing something to or with a trailer, and he sent her brother F away. He then told B to come into the trailer, and when she did he pulled down his pants and exposed his penis to her (count 8 charged that CX wilfully and unlawfully exposed B to an indecent act when she was under 12). She started to cry, but despite that he put her hand on his penis, desisting only when F was heard returning. Count 9 charged that touching of his penis.
[72]
[43] CX showed the jury a video in the course of his evidence-in-chief, and he described the trailer shown in the video as never being kept in the shed.[32] He said it was too exposed and open to be the site of abuse, if outside the shed.[33] B's evidence in cross-examination had been that the trailer was in the shed when the offence happened, and she was cross-examined about that, and the video was played to her in cross-examination.[34] That cross-examination and the evidence from CX may have caused some jurors, but not all, to have had a doubt as to the accuracy of her evidence about that occasion.
[73]
[44] Count 10 charged an offence of unlawful assault, and the jury acquitted. The circumstances alleged by B were that when her father was angry with her and the other children, he had pointed a shotgun at all of them, and had poked her in the chest with it, saying that if she took a step back he was going to shoot her. She thought it was loaded; after that threat he had "bashed me (with the gun) and I didn't move".[35] She could not recall how the incident came to an end. B's description was that her mother and F were present, but A was not. F described what seems to have been the same incident in his evidence, but he said that the shotgun was pointed directly at him, and that CX had kept it there while pumping out all of the shells; and had then made F pick them up and give them back to him. He did not describe the shotgun, whether loaded or not, being pointed at B, nor being pushed against her chest. CX's wife also described the incident, but said that CX deliberately unloaded the shotgun, made F pick up the shells and give them to CX, and then pointed the (apparently unloaded) shotgun "at us."[36] CX then put it away; his wife could not remember whether B was present or not. She did not describe the gun pointed at B, or touching B, but did say that "he was just sort of swinging it around, pointing at me, F, just pointing it in front of him."[37] In those circumstances that acquittal is easily understood and not inconsistent with any other verdict or outcome.
[74]
[45] Count 11 charged an offence of indecently dealing, and the jury convicted. B described that offence happening when her mother had gone shopping, and her evidence was that on shopping days, which were Thursdays, CX would attempt either to make B stay home from school, or go to school late. This was so he could have a "do" before taking B to school. Her evidence was that on Thursday "do's", she would be required to remove all her clothes and that on this particular occasion she was lying on a bed in her brother G's room, with her father pushing his penis between the cheeks of her bottom, when they heard her mother returning early. Her father got up and went and spoke with her mother, and B had stood naked near a flyscreen door, but was not been noticed by anyone. Her father then gave her a belting for having moved, when he had told her not to.[38]
[75]
[46] CX's substantive defence, apart from denying the charge, was that there were only two flyscreen doors in that house, as demonstrated by the video, one a sliding flyscreen on the front veranda and another a flyscreen at the back door.[39] B's evidence was that the video was taken before the room was built in which the offence had occurred, and - as I read the evidence - that she was standing at the rear screen door, hoping that she would be noticed, and that the abuse would stop. Nothing in the cross-examination or evidence of CX really raised any ground for questioning the jury's verdict of guilty on that count, nor for considering it inconsistent with the result on any other count.
[76]
[47] Count 12, on which the jury reached no verdict, was described by B as an occasion when her mother was getting medical attention in Brisbane in early 1992, and her father took B to a hotel. B gave a description of it as a place with mirrors all around the staircase, which caused her to fear that people were watching her, and she described being taken to a room with a double bed, a television, and a bathroom. She described being abused in what was by then the common way on the bed in that room, and feeling upset and stupid, and that CX bought her a troll doll because she felt bad. She was cross-examined about her description of the hotel, and the Brisbane city, and it was put that it had not happened. B was also cross-examined about the length of the visit to Brisbane, and where the family had stayed, and who went; B's evidence was that it was more than an overnight trip. Her mother's evidence was that she had six monthly check-ups, but that those were only day visits to Brisbane, and that once B had gone with CX and her on that day trip to Brisbane. CX's evidence was that none of the children came on those trips, and he agreed there were only day visits.[40] Evidence from the director of medical services at the Wesley Hospital established that the date of B's mother's day surgery was 19 March 1992, and school records admitted by consent established that B was recorded as absent from Tuesday 17 to Friday 20 March 1992_._ The evidence of both parents was perhaps contradicted by those school records, but was sufficient to explain why no verdict was reached on that count.
[77]
[48] Count 13 resulted in a conviction, that being for indecently dealing with B, then still a child under 12. Her evidence described that offence occurred in the Childers Hall, where B would go to practice tap dancing under CX's supervision. On occasions so too would F, and B's best friend at the Cordalba School, C. When neither C nor F were present, if B did a poor routine, she got into trouble; if she did a good one her reward was that CX would pull her pants down around her knees and rub her bottom for up to 20 minutes, while she, effectively, kept watch for them. The occasion that was count 13 occurred when in fact C was present, but CX sent C outside to get something from the car, and in the up to five minutes of her absence, CX committed the offence, rubbing B's bottom with his hand.
[78]
[49] Counts 14 and 40, described as happening in that hall on a different occasion, but both on the same date, allegedly consisted of similar offences committed against C and B, in the presence of each other. B's evidence was that her father would "give us a bum rub for doing a good job",[41] and she recalled an occasion at the hall - count 14 - when her pants were not down, but her father had his hand in her pants, and although B could not see C, B assumed that C was also getting a "bum rub"[42] with her father's other hand.
[79]
[50] C said that CX encouraged her to call him "daddy", and that when she visited the farm to see B, CX would give her "bum rubs", and put his hand down the back of her pants, rubbing her buttocks, her vulva, and her anus with his hand.[43] This happened in bedrooms, in the Childers Cultural Centre, and on the cane farm. When she visited B and shared a double bed with B, CX would come in and fondle her bottom and vulva at night, while C pretended to be asleep. She also described an occasion when she and C were at the Childers Hall, and CX had said that he was so proud of them that he was going to give them a "bum rub"[44] to show them how proud he was; and he did, putting the hand down the backs of the pants of both girls and rubbing their buttocks at the same time. C's evidence was that that occurred in the centre of the stage, for about less than five minutes. She agreed that when she was at the hall, others were using it, practising for other matters, and she could recall that there was "karate on in the hall". She denied the suggestion put to her that the incident had not occurred, and that her evidence was a fabrication to assist B and her family members against CX.
[80]
[51] C's evidence of other persons using the hall at that time probably explains why no verdict was returned on those two counts, and that outcome is not inconsistent with any other verdicts. There were therefore no actual acquittals on any charges of indecent dealing alleged to have happened when B was living at Cordalba, but some convictions on those, and some non-verdicts. The jury did convict CX on a specific count against C, count 41, alleged to have occurred in the same general period, on an occasion described by C as happening when he gave her a piggyback ride in the cane fields. Her evidence was that he took advantage of the opportunity to put his fingers inside her shorts and rub her vulva, and that when she got off he told her to lie on her stomach and pull her shorts down. She could see his penis, which she described as black. She now understands that he was wearing a condom; he began rubbing his erect penis over her bottom. He also licked her ear and whispered "stuff in my ear".[45] C was in grade five at that time.
[81]
[52] The family then moved to Nerang and count 15, on which the jury convicted, happened when B was aged 12. B described the offence occurring in a garage at those premises, after CX had been angry for almost a fortnight at her, because, as he correctly suspected, she had been deliberately avoiding him. Eventually, to please him, she stood there in the garage while he rubbed her breasts and pulled her into him, and obeyed his request to stand behind the garage door and take her pants down. Count 15 was constituted by the rubbing of her breasts, and by the further event of his pushing his penis into the cheeks of her bottom behind the garage door. Count 16, an offence of having wilfully and unlawfully exposed B to an indecent act, on which there was also a conviction, happened on the same occasion, and it was constituted by his showing her his penis. Her evidence was that he said B was getting much older now, and that CX was "bored with just the normal 'do's'";[46] he said he wanted B to touch his penis. He then took her hand and put it on his penis. Count 17, on which there was also a conviction, was constituted by CX then taking her hand and putting it on his penis, and then moving her hand.
[82]
[53] Those three convictions are consistent with each other; the challenging matter is the acquittal on count 18, also allegedly occurring in that same incident, and allegedly constituted by behaviour in which CX then stood in front of B and rubbed his penis against the top of her thighs near her vulva. Her evidence was that that became a regular part of "do's" from then on, and that CX - on that first occasion - masturbated himself until he ejaculated onto the floor. He then rubbed his foot through the semen on the floor.[47] Although C's evidence-in-chief made it impossible rationally to distinguish between the verdicts on counts 15 to 17 and on count 18, B was cross-examined about the assertion that CX had ejaculated onto the floor on that occasion, and she was uncertain whether CX did or not.[48] The cross-examiner suggested that B had simply rehearsed her evidence over and over again, and was making it up, contrasting her uncertainty in cross-examination about ejaculation with her evidence-in-chief that her father had definitely ejaculated and rubbed his foot through it. B said that her uncertainty was because the ejaculation was not important to her; but that passage in cross-examination, in which she somewhat retracted her description of ejaculation having occurred, is capable of explaining a reasonable doubt about what was, on her first description of it, a fairly significant event happening when the offence constituting count 18 allegedly occurred. The jury may well have had a reasonable doubt as to whether B was accurate in her description of that as either the first occasion, or an occasion, on which her father had rubbed his penis on the "front of my legs near my vagina",[49] because of the uncertainty about ejaculation, made important by the cross-examiner. There is no necessary inconsistency between those verdicts.
[83]
[54] Count 19 referred to an occasion on which B said she had been feeding a cat at the home of her then best friend, who lived some 200 metres away. During Christmas periods, B would look after her friend's cat, and she described an occasion when she was doing that, and when CX arrived at the house. Over objection from B he took her to her friend's mother's room, B removed her pants and lay on the floor, and CX lay on top of her and pushed his penis into her bottom. She recalled that one of her friend's mother's friends arrived, who had the key to the house and let herself in, and CX hastily dressed and spoke to the woman. B recalled that she was about 12 years old at that time.
[84]
[55] B gave evidence in chief that she had told her friend about abuse of her, around that same time, but that she had told her friend that while her father had done "those sort of things a while ago", she had told the friend that she told CX she did not like them, so "he doesn't do them anymore".[50] She said in evidence that what she had told the friend was not accurate, because she did not want to tell the friend that she was still being abused. The other evidence led by the prosecution established that the investigating police had spoken with that friend in early 2002, but the friend was overseas at the time of the trial, and not called as a witness.
[85]
[56] The evidence led from B by the Crown, disclosing a prior statement to that friend inconsistent with the claimed abuse on the occasion of count 19, led without objection, is sufficient to explain the verdict of not guilty on that count. The jurors had a clear reason for concern about the accuracy of evidence of abuse on that particular occasion. B's general credibility had also been challenged in cross-examination, by the revelation that she was facing five charges alleging offences against the Criminal Code Act 1995 (Cth), and two against the Social Security Act 1991 (Cth), relating to her having received a benefit from the Commonwealth which she was not entitled to receive. Her evidence was that she intended to plead guilty to the charges, and that the offences related to her Austudy Youth Allowance. She admitted the total overpayment was some $13,500, and that her intention to admit guilt meant she was a person who would tell lies in order to gain money to which she was not entitled. The object of that cross-examination was undoubtedly to advance the allegation that she had conspired to accuse CX falsely with a view to obtaining compensation to which she was not entitled. That evidence, adverse to her general honesty, justified and required that the jurors assess her uncorroborated descriptions of all counts with great care.
[86]
[57] Counts 20 to 22 inclusive, on which the jurors returned no verdicts, all charged offences allegedly occurring when B and the family were still living at their home at Nerang. B swore that those three offences were committed at various building sites to which her father took her, in the approximately six month period in which they lived in the house at Nerang. Her recollection was that they left there when she was half way through grade 8, so the offences in counts 20 to 22 occurred, she reasons, in the first half of that year of her thirteenth birthday, 1995.
[87]
[58] She swore that CX began taking her to building sites at night time because there were not enough opportunities to abuse her in the home. Count 20 charged what she described as the first time in which he took her, at night, to an unfinished building on a site where he rubbed his exposed penis "between the front of my legs", and then procured her to lie on the concrete and pushed his penis into her bottom until he ejaculated.[51] She said that pretty much the same thing happened on the occasion that was count 21, which was different only in that on this occasion he brought a towel for her to lie on. Count 22 was distinguished in her recollection in that on that particular occasion, they went to the building site from the home of her friend D, the complainant in count 42. On all three occasions CX ejaculated on her back. She thought the same building site was the venue on the second and third occasions, but could give no other details of them. In cross-examination she said that her father was then working as a general handyman and builder, and that the offences always occurred at night.
[88]
[59] Nothing particularly emerged in the cross-examination to cause specific doubt as to B's accuracy, other than the general oddity of CX choosing those venues. However, the absence of verdicts on those counts is not inconsistent with any other result.
[89]
[60] The next offences were alleged to have happened after the family had moved to a residence at Mermaid Waters, and counts 23 to 36 were alleged to have happened when B lived at that house. Counts 23 and 24, on which convictions were returned, happened on 23 May 1997. B was able to fix the date by reference to a document called a "late slip" from her school, Exhibit 10 at the trial. That date means nearly two years had passed since the events described in counts 20 to 22, and her evidence was that abuse had continued, and worsened, at the Mermaid Waters home. She said she was subjected there to "do's, stand-ups, and quickies", as her father termed them. Abuse occurred at least once a day, in her room, her brother's room, in her parents' room, and most frequently, behind the garage door downstairs, and behind the door separating the lounge from the bedrooms. She said CX kept a mattress, oil, and toilet paper in a manhole in the roof.
[90]
[61] Count 23 occurred on the date of the late slip, and B genuinely felt unwell that morning. She swore it had been a frequent occurrence for her father to urge her on Thursdays to stay home, so he could molest her, but on this date she was unwell. Her mother said she could stay in bed, and when her mother went shopping, her father immediately came to her room, and removed her clothes and his. He then subjected her to the familiar routine of putting Vaseline on her bottom, and the top of her thighs, lying on her and pushing his penis into her bottom, (count 23); he then lay on his back and procured her to masturbate him. During that exercise he was touching her breasts. Afterwards he wiped her with the toilet paper, she got dressed, and went to school. She was late, so she was given a late slip, and she kept it. She did that because a woman at the reception of the school remarked how B was often late; B had been getting her father to write notes for her, because her mother did not realise B attended school late so often on Thursdays,[52] so B thought it in her interests to get a late slip.
[91]
[62] In cross-examination it was pointed out that Thursday that week was 22 May, and that she had been late on 13 May in the previous week, also not a Thursday. Those matters raised no real challenge to her description of what had happened on 23 May 1997, nor her description of being inveigled into attending school late by CX. There is nothing about those convictions which is inconsistent with any other verdict. It demonstrates that in the absence of specific reason to doubt evidence about a specific occasion, the jury was persuaded beyond reasonable doubt by CX's various admissions and B's evidence - which in my judgment reads as a generally compelling account of over a decade of relentless exploitation - that the offences alleged had indeed happened.
[92]
[63] Counts 25 and 26, on which convictions were returned, were both alleged to have happened on 21 August 1997. B's evidence was that on that day CX had wanted her to stay home when her mother went shopping, but she wanted to go to school because she had high jump practice, which she liked. As soon as her mother left to go shopping her father came to her room, undressed, persuaded her to lie on her stomach, and then the usual variety of abuse occurred. Count 26 consisted of his conduct in persuading B to masturbate him; he ultimately ejaculated on her back. She recalled having asked him why they could not simply spend time together or play board games or just hang out, instead of "doing this all the time?", to which her father replied "We can do that just after this".[53] She went to school later that day; she fixed the date from her diary.
[93]
[64] Counts 27 and 28, on which the jury returned verdicts of not guilty, were offences B alleged had happened behind the garage door, and under some stairs. Her description was
[94]
"...there was a door that separated the garage from the games room and the stairs went above that to upstairs."[54]
[95]
She described the occasion of count 27, which she thought happened in early 1998, as one of a "normal stand-up 'do'" when "we were behind the door"[55]; she had her pants down and CX was rubbing his penis against her bottom, from behind. He then turned her to face him and upset her by kissing her with an open mouth. She cried, saying it was too personal, and he objected that B was always putting limitations on everything. Examples he gave were that she complained her breasts hurt if he touched them, or it was uncomfortable if he wanted her to lie on her back; and he objected to those limitations.
[96]
[65] She described count 28 as an occasion on which she had arrived home from a friend's place, and he was angry that she was out, and he (accurately) accused her of "hanging out with my friends to avoid him".[56] Although that was the truth, she denied it to him, and he then endeavoured to persuade her to commit fellatio on him. She objected, but eventually knelt down, and he put his penis in her mouth. She vomited, he told her she was grounded, and she ran upstairs. She fixed the date as Wednesday 14 January 1998, by reference to a school diary.
[97]
[66] She agreed in cross-examination that where she said both counts 27 and 28 were committed, four different doors gave access to the area where the offences happened.[57] When shown a video of the house in cross-examination, she identified where "he'd get me to stand"[58], and pointed to what she described as the area under the stairs. However, when CX gave his evidence-in-chief, he denied that there was any area as described under the stairs at that house, at which any offence could have been committed.[59] He swore that no one could not get underneath the stairs. It appeared from his evidence there was no video of the actual stairs at all. The learned judge reminded the jurors of the contention by the defence that it was either impossible or implausible that any offences could have occurred where counts 27 and 28 were described as happening,[60] and that issue of fact, difficult to resolve, is sufficient to explain the acquittals on those counts as not being inconsistent with other verdicts.
[98]
[67] Counts 29 and 30, on which the jury respectively returned no verdict and a conviction, were alleged to have happened on 15 January 1998, the day after the offence alleged in count 28, but at a different place, namely in F's bedroom. B fixed the date by her diary. B described that as an occasion on which her mother had gone shopping and her father induced her to go into F's room, remove her clothes, and lie on the bed. He then put his penis between the checks of her bottom, then placed her on her back, and rubbed his penis in the area of her vulva. She told him it was too uncomfortable, and he took her hand and began masturbating himself with her hand on his penis. That alleged conduct constituted count 29, on which no verdict was returned; she said he then persuaded her, over her preliminary objection, to suck his penis. That constituted count 30 and her evidence was that eventually he said he would ejaculate in her mouth, but she ran to a toilet and vomited, and he laughed at her. The jury convicted him of that count.
[99]
[68] She was cross-examined as to whether the Vaseline she said CX put on her bottom would have gotten onto F's bed, and it was suggested that, because she did not describe Vaseline being on the bed, the incident never occurred. Other than that bit of cross-examination, it is difficult to discern a rational basis on which the jury would have been satisfied of the commission of count 30, but not satisfied of the commission of count 29. However, since no verdict was returned on count 29 the outcome of that charge is not necessarily inconsistent with the jurors being satisfied of the necessary facts on which to find count 30. It is possible that some one or more were persuaded to a doubt about whether the activity described in count 29 had happened, because of the point made about the Vaseline.
[100]
[69] Count 31, on which the jury returned a verdict of guilty of indecent assault, was charged as a count of rape. B's evidence was that it happened when she was in grade 11, and in the second half of the year, when she was 16 and that her mother was outside hosing. She said CX used F's room because his bed was against the wall and one could lie on the bed and see out the window, making it a good spot to see people coming into the house. She described the events of that day as consisting of the standard variety of abuse, namely that her father lay on her back and put his penis between the cheeks of her bottom, and he then, on this day, told her that he wanted to "have a go".[61] She immediately protested, because her mother was outside, and her father said, "We can see her". He then induced her to lie on her back, and she became very tense and she felt his penis "touching my vagina."[62] She screamed and he stopped. B was very upset.
[101]
[70] The learned judge directed the jurors that B's evidence did not describe penetration and that they must acquit on the count of rape, but the judge left counts of attempted rape, or in the alternative, indecent assault; and the jury convicted of the latter. There was very little made by way of challenge in cross-examination on that count, and the conviction on it is not inconsistent with any other verdict.
[102]
[71] Counts 32 and 33, on which there were acquittals, were alleged by B to have happened on different dates, but at the same location, which was in a neighbour's garage. B's evidence was that that neighbour arranged with CX that CX would feed the neighbour's cat when the neighbour was away, and that CX would persuade B to accompany him on the visit to those premises for that purpose. She described in counts 32 and 33 two separate occasions when, in the neighbour's garage, her father procured her to remove her pants and bend over the boot of a car. He rubbed his penis in her bottom, and ejaculated on the floor. Count 32 was charged as the first occasion when that happened, and count 33 was second. On the latter occasion, she recalled that CX had, she thought, persuaded her to face him for a portion of the time, so that his penis rubbed between the upper part of the front of her legs; it still ended with him standing behind her.
[103]
[72] She was cross-examined in some detail about diagrams she had drawn of the garage, and where the car was positioned and the claim that CX had ejaculated each time on the garage floor, but the significant challenge to her evidence about that abuse lay in a statement from the neighbour, put by consent before the jury. The neighbour was not called as a witness, and his statement recorded that the neighbour, although he had asked CX to feed the neighbour's cat on one occasion when the neighbour was on holidays, had never given CX the keys to his house or garage, and that CX had never had access to the garage. That evidence is sufficient to explain why the jury had a reasonable doubt on those two counts, and that result is not inconsistent with any other verdict.
[104]
[73] Counts 34 and 35, allegedly occurring on consecutive dates in June 1998, resulted in an acquittal on count 34 and a conviction on count 35. Those two verdicts are, at first, difficult to reconcile. B was still living in the Nerang house at that time, and she described count 34 as an occasion when she was genuinely feeling ill one morning and her mother volunteered to take her to the doctor. B was delighted, and CX was angry that B had agreed to go with her mother; he wanted B to stay home with him. She refused to because it would look suspicious, and she explained that to him. CX accepted that, but that night procured her mother to go to a fish and chip shop up the road and get dinner, and during his wife's absence came into B's room, and after putting Vaseline on her, put his penis in her bottom. She recalled that he was masturbating himself, and ejaculated on the floor. Some two minutes later her mother came home. She identified the date as Thursday 25 June. It was suggested in cross-examination that her mother would have noticed the semen staining on the carpet, but B said her father wiped that up with toilet paper.
[105]
[74] No particular reason appears from the cross-examination for the jurors to have had a reasonable doubt about the commission of that offence, but not the one charged as count 35, which B said happened the next day, when her father told her mother that he wanted something from the hardware store. Her mother went in the car to collect that, and her father then took the opportunity to come to B's bedroom with his Vaseline, and conduct a more leisurely sexual abuse of B than he had had the opportunity to do the day before. Regarding that count, B was cross-examined to some effect on the proposition that her father was the household member with building and general home maintenance skills, and the one who went to the hardware store whereas her mother did not. However, that cross-examination did not result in an acquittal on count 35. Regarding 34, CX said he could not masturbate because of tendon damage to his fingers, and had never masturbated himself,[63] and he also described having a recurring infection in his foreskin, aggravated by rubbing.[64] The Director suggested in the supplementary written submission that this evidence may have created a doubt about the masturbation described as part of count 34, and may explain the acquittal. That is possible, and it follows that the acquittal is not necessarily inconsistent with the conviction on count 35, in respect of which B did not describe any masturbatory activities, either by CX or by her on him at his invitation.
[106]
[75] Count 36 was charged as an offence of rape, and the jury returned a verdict of guilty of attempted rape. The offence was particularised as happening on 12 September 1998, and B's evidence was that on that date her father picked her up from her place of employment at a Target store, and told her that he had a hotel to which he would take her for a "fool around", and that he drove her there in a utility. She thought it was the Van Dieman Motel, located on the Gold Coast Highway.
[107]
[76] B's evidence was that she had told CX many times that she hated being taken to building sites and other places, because it was so much more disgusting,[65] and that she felt CX was flaunting her. She was taken to a room which she recalled as room 7, and her father procured her to remove her clothes. He then showed her his non-erect penis, which she said that was the first time she had seen in it in its flaccid state, and he then had her perform fellatio until he became erect. He then put her on her back, and attempted to have sexual intercourse with her. She resisted and ultimately he caused her to kneel on the bed and he attempted to penetrate her vagina from the rear, unsuccessfully. She got dressed, feeling disgusted, and they left. She recorded the date in her diary.
[108]
[77] The prosecution called the owner of that motel at that time, who produced a booking sheet for that date, for room 7, booked in CX's name, for $25, which the owner said indicated that the room had been let for a period of up to two hours, and then cleaned and relet. A car registration number for a Ford motor vehicle was recorded, and a signature appeared on the document, apparently that of CX. The prosecution established that a Ford car with that number was registered to CX at that time. In his evidence and argument on this appeal CX denied that the signature was his and contended that it was forged. His passport and driver's licence were put in evidence before the jury, and in my opinion the jurors were entitled, making the comparison permitted by s 59 of the Evidence Act 1977 (Qld), to conclude that all three signatures were consistent with being by the one person. The booking register recorded CX's address as the Mermaid Waters address at which CX then lived. The motel owner's evidence established the authenticity of the record - Exhibit 22 - and CX agreed in cross-examination that when he was living at that address recorded on the booking slip, he drove a white Ford sedan.[66] That evidence made a very strong circumstantial case supporting B's evidence on that count, despite CX's denials of having ever gone to the motel, or any motel, with her.
[109]
[78] Count 36 was the last offence charged when B and the family lived at Mermaid Waters and the remaining offences charged in relation to B, other than the count of maintaining a sexual relationship, were alleged to have happened when the family moved to Bonogin. Count 37, an offence of indecent assault on which the jury convicted, was described by B as happening in September 1999. She was 17 by then and this was another occasion when she was genuinely ill and stayed home. Despite her objections, her father persuaded her to remove her shorts, lie on her stomach and abuse in the usual form occurred. After that he persuaded her to get on all fours, and his penis touched her vulva; she became angry and CX again accused her of putting "limitations on everything and avoiding him."[67] Nothing particularly emerged in the cross-examination of B to challenge her description of count 37, and the conviction on it was consistent with all other verdicts.
[110]
[79] Count 38, the last individual offence alleged regarding B, was described by her as happening in August 2001, nearly two years later, and her evidence was that in the intervening period her father would still pester her to be available for his abuse. This continued after she turned 18 and she got her own car, and when she was studying at University, while still living at home. Her evidence about count 38 was that it was the last occasion in which any abuse occurred, and that she had moved out to live with A in mid-2001, but visited her parents' home in August 2001 because her mother was cooking a baked dinner. As soon as she arrived in the garage, her father emerged and encouraged her to remove her pants; he then pushed his penis into her bottom, and ejaculated on the floor. The jury found him not guilty on that count, although nothing particularly emerged in the cross-examination to make the incident improbable, other than the fact that B was 19 and a half by them, and living independently. Because that particular offence was alleged to have happened so much later than any others, that acquittal does not show any inconsistency with the convictions on the offences happening when B was significantly more under his control. Importantly, that offence was charged as indecent assault, and B's own evidence described an apparently quite prompt compliance with CX's request, and apparent consent to it, or else grounds on which CX might honestly and reasonably have thought thereby that B was consenting. The jurors were directed about those matters. Accordingly, that acquittal establishes no relevant inconsistency.
[111]
[80] Count 39 was a conviction on the charge of maintaining a sexual relationship with B from July 1989 until July 1997, and it would have been simply astonishing had there been any other verdict. That end date was chosen as a matter of convenience, because the relevant legislation changed at that date, as to the elements of the offence, and it would have been unduly onerous to require the jury to absorb two different sets of instructions about those elements.
[112]
[81] Counts 40 and 41 involving C, have been discussed; count 42 was a conviction in respect of D, an offence committed in the period when the family lived at Mermaid Beach. D was a friend of B, who had the misfortune to be exposed to CX when she visited. That conviction is not inconsistent with any other verdict.
[113]
[82] In the result, an analysis of the outcomes persuades me that there is no merit in that ground of appeal, applying the principles described earlier. The jury conscientiously applied themselves to the task of not convicting CX unless satisfied beyond reasonable doubt of the elements and particulars of the charge as alleged by the prosecution.
[114]
[83] Ground 4 was a complaint that vital evidence was withheld from the defence by the prosecution "that may have created a mistrial if introduced into evidence". I understand that ground to mean that a mistrial ought to have been ordered, had the evidence been produced, as it should have been. CX's written outline argued that the evidence which had been withheld might provide CX "with an accidental unwitting alibi for most, if not all, of the allegations made against him at both his trials."[68] The background to that submission was a letter signed by an acting Crown Prosecutor on 7 July 2005, and supplied by the (different) Crown Prosecutor at the trial to defence counsel, very late in the trial. The letter described how the acting Crown Prosecutor had been assisting the Crown Prosecutor who conducted the trial, in early January 2005, interviewing prospective witnesses. CX's wife had told them that on the occasion when the police came to the family home at Cordalba i.e. on 28 November 1990, (the date of count 1) and before the police arrived, CX's wife, who had wanted to calm him down and who was concerned that he might be violent with the police, had crushed up some sleeping tablets and put them into his mashed potato. She did that because he was so very "worked up".
[115]
[84] The evidence from one police officer, who attended that day, was that they had information that CX was threatening to shoot the family, and that his wife was out looking for two of the children. In cross-examination CX agreed that he may have been cleaning his shotgun when the police arrived that day. That evidence makes understandable that CX's wife would want to calm him down before the police arrived.
[116]
[85] CX's written argument concedes that after the Crown Prosecutor provided the letter to his counsel at the trial, and after counsel took instructions, his counsel refused to have CX's wife recalled, or the acting Crown Prosecutor or Crown Prosecutor examined about its contents. CX's counsel was described by CX's written submission as explaining that he was not going to follow an instruction to do those things, and that if counsel were not permitted to conduct the trial according to counsel's judgment, CX could get another barrister. Accordingly, no attempt was made to introduce the document into evidence.
[117]
[86] That decision made by counsel did not deprive CX of any possibility of a defence on any count. To apply the observations by Hayne J in Ali v R (2005) 214 ALR 1,[69] there was a reasonable explanation for the course followed at the trial by CX's counsel. The greater forensic advantage lay in not establishing in the jury's presence that CX's wife was frightened for her children that day, and that she feared CX would harm them or the police. Had Mr Cousins cross-examined CX's wife on the matter, and had she agreed she had done as described, that would not have advanced CX's defence - of a conspiracy by dishonest women - at all. Nor would it raise the possibility that he had in fact, despite his categorical denials, abused both of his daughters, his niece, and two other children, over a period of at least 16 years but only when drugged by his wife and when not knowing what he was doing. The evidence suggested he was well aware of what he was doing when the police came on 28 November 1990. The sensible decision not to introduce the contents of the letter into evidence did not result in any miscarriage of justice.
[118]
[87] Ground 5 was a complaint that some of the jurors had probably seen CX handcuffed during an ajournment. That happened after B had been in the witness box for three days, and what occurred was described by counsel for CX in these terms:
[119]
"As the jury was being brought through the doors at the back of the court across and to the second door there - it would seem that while that was happening the first door was open where CX had been coming up from the cells in the lift with the two Corrective Services people and his handcuffs were being taken off and it seems common ground that some of the jurors saw that happen."[70]
[120]
Counsel requested that the learned judge discharge the jury, but the judge declined, despite counsel's concern that there would be a clear inference available to jurors that CX was being held in custody.
[121]
[88] In my opinion the learned judge dealt quite skilfully with the problem presented, directing the jurors in the following terms:
[122]
"Ladies and gentlemen, there is a matter I have been asked to raise. Apparently, when you are coming back before during the break, the accused, CX, was coming in through the other door. I don't know whether you noticed that or not, but there are facilities behind that door and there is an arrangement between the Court and Corrective Services people that once a person appears here for a trial, there is an arrangement that they're in the - under the supervision of Corrective Services and so there are toilets behind that door. He was coming out of that door. Do I need to say anything more? You are to draw no adverse inference, if any of you saw anything, against him. All trials here have there own - all different trials have different ways of being run around and there are different arrangements made and it takes too long to take and explain what happens in every single trial, but take it as a clear direction of law from me you are to draw no adverse inference against the accused from the fact that you saw him at that door."[71]
[123]
[89] In my opinion the judge would have been in error in discharging the jury at that stage of the trial on the ground advanced. It was far better to deal with it as the judge did, which did not in any way mislead the jury. It was not unfair to CX or the prosecution to continue the trial once that direction was given, and no miscarriage of justice has resulted from the trial continuing.
[124]
[90] Ground 6 complains that one juror was intimidated by others, and of the manner in which the learned judge dealt with that possibility. The jurors had originally retired to consider their verdicts on 19 July 2005, at 11:09 am. On 21 July 2005 at 12:05 pm the judge advised counsel that she had a note from a juror, which said that one of the jurors was having deep concerns about personal attacks, intimidation and other matters concerned with the deliberations. The judge advised that the juror was not asking to be discharged, and that the judge was considering giving what the judge described as an adapted Black[72] direction, to tell the jurors that they had to respect each other's wishes. During discussions with counsel the judge remarked that the judge would not advise the juror at that stage what options were open to the juror because "it's a whinge at the moment."[73] The judge added that she was not surprised to get a note like that from a juror, when the jury had been out for two days. The judge further advised counsel that after a four week trial, the learned judge was not going to do anything unless there was an application.
[125]
[91] Neither counsel urged the judge to discharge either the juror who was the author of the note, or the whole jury, or to take any other step than the one the judge had proposed, namely giving a version of the direction suggested in the judgment in Black. The judge described the direction she proposed to give, and neither counsel objected. The judge then directed the jury in these terms:
[126]
"But I think it might be useful if I say at this stage that each of you has sworn or affirmed that you would conscientiously try the charges and decide them according to the evidence, that's an important responsibility, and you must fulfil it to the best of your ability. And each of you take into the jury room your individual experience and wisdom and that's what the community expects, that you will take that in. And you are expected to judge the evidence fairly and partially [sic] in the light of your experience and wisdom. You also have a duty to listen carefully and objectively to the views of every one of your fellow jurors. The process of considering your verdict should involve weighing up one another's opinions about the evidence and testing them by discussions. This often leads to a better understanding of the differences of opinion which you may have and may convince you that your original opinion was wrong. That is not of course to suggest that you can consistently with your oath or affirmation as a jury join in a verdict if you do not honestly and genuinely think that it is the correct one. Experience has shown that juries are often able to agree in the end. And for that reason juries are given as much time as they need to come to their decision. But you should calmly consider the evidence and listen to the opinion of other jurors calmly. If after that you cannot honestly agree with the conclusions of other jurors you must give effect to your own view of the evidence."[74]
[127]
[92] As it happened, the jurors returned their verdicts at 7.55 pm that evening, and the record does not reveal that any further communications were sent by the juror who had been experiencing difficulty. In my respectful opinion the learned judge dealt intelligently and sensibly with the problem confronting the judge. I cannot see why the course followed was unfair to CX, or the prosecution, and it did not cause any miscarriage of justice.
[128]
[93] The next ground, ground 7, contends that the judge was significantly biased against CX, had intervened in the cross-examination, pulled faces at the jury during cross-examination, had extensively emphasised the Crown evidence, and had lied about JZ not answering questions when a witness. That offensively worded ground of appeal was based on several specific complaints. One was that the learned judge had described CX to the jury as a risk taker. That was a matter raised by counsel with the learned judge during the directions to the jury. The rather foolish complaint CX makes is that during the directions the learned judge said, quoting the submissions of counsel for the defence, that:
[129]
"He said that this is just a crazy suggestion that he would take a risk like this, that they would take a risk like this, and that you would not be satisfied beyond reasonable doubt. The prosecution, of course, say that you would accept B, he is a risk taker. That's the abiding sense with which you are left when you hear and accept B's evidence."[75]
[130]
[94] The judge did say that CX was a risk taker, but the complaint about that simply refuses to face the simple fact that the learned judge was obviously, and only, repeating the arguments of the prosecution, not advancing the judge's own opinion. The judge had earlier quoted much the same variety of argument from each counsel[76] in respect of count 9 on the indictment, repeating the submission by the defence that the alleged offending conduct involved taking an incredible risk, and a corresponding submission by the prosecution that CX was a risk taker and "taking a risk is nothing new to him".[77] That earlier repetition of arguments by each counsel was not an example of the judge expressing her own view, and the jury returned no verdict on count 9, the first occasion on which the judge summarised those arguments; and acquitted on count 18, the second offence about which the judge repeated the argument that CX was a risk taker.
[131]
[95] CX complained about the judge reminding the jurors of B's evidence on particular counts, contending that highlighted her evidence too much. The judge was obliged to remind the jurors of the evidence, including the defence evidence, on each count, and did so.
[132]
[96] Of more significance are the complaints arising from the evidence given by JZ in the defence case. He had been called to give evidence of witnessing the conspiracy actually being committed, when A, B, CX's wife and her sister planned - by chance, in his presence and hearing - to extract money, by implication by making false allegations against CX. Each of those relevant Crown witnesses was cross-examined about that, and all denied that any such conversation had ever occurred. JZ, and HZ, his wife, were called to swear that it had. JZ described a visit to the CX family home at Bonogin, when CX was at the dam, his brother-in-law was underneath the balcony, and the four females were upstairs. JZ described hearing a conversation among the women about criminal compensation, and then he was assured that he would not be sued, because his ex-wife had taken all his money; and he was offended. It is obvious the jury rejected that evidence by JZ, and that of HZ, as they were entitled to.
[133]
[97] CX's counsel had endeavoured to establish in evidence-in-chief when JZ had first told anyone about that conversation. It was a feature of the case that the trial judge allowed great latitude to counsel for CX, who examined in chief about a number of matters going to the credit of his witnesses, in an obvious attempt to soften the impact of a hostile cross-examination on those topics. Counsel had some difficulty getting JZ to specify whether JZ told CX of that overheard conversation immediately, or in the week that CX separated from his wife, or later that year, in December 2001. The learned judge intervened to establish if it was when the allegations were first raised, and ultimately ascertained that at that latter time JZ had said words to CX to the effect that JZ had heard "the girls talking about suing you and suing me back in May this year".[78] The learned judge appears to have had some brief difficulty, similar to that experienced by CX's counsel, in ascertaining what was said when.
[134]
[98] JZ was the last witness at the trial, and a little later that day CX's counsel raised a complaint to the effect that during the course of JZ's evidence, when counsel was observing the judge, there were several occasions when the learned judge had turned to look at the jury, and had raised her eyes or started to smile. Counsel added that counsel was sure the judge was not intending to do that, and the judge remarked "These things can be unconscious sometimes."[79] Counsel responded that he was sure it was unconscious, but that "the combination of you fairly and appropriately jumping in and asking questions...that...[with the combination of your facial expressions]...might have suggested that you had formed a particular view about what he said." (I have inserted the words in brackets).
[135]
[99] The judge responded that she would remind the jury that it had been a long trial, and reminded counsel that when CX was giving evidence of his physical characteristics (his overly long foreskin), that even his counsel had been seen to laugh, as had some members of the jury. The jury said that she would instruct the jurors to put those sort of things out of their minds, and judge the matter on the evidence. She added:
[136]
"I don't particularly remember. If you say I did it, perhaps I did do something like that. I did jump in a couple of times because I thought the witness was inclined to try and make a speech from the dock - from the witness box, and frankly, I thought your client did too, from - on many occasions; and so I have a duty to ensure that the trial is run according to law and he's not entitled to make a speech from the witness box; and on occasions I did find JZ frustrating in that respect, refusing to answer the questions that were asked of him."
[137]
Her Honour added that she may have had some facial expressions because she found it frustrating, and counsel repeated it was a combination of those expressions and the stepping in, but repeated that "stepping in is fine".[80]
[138]
[100] The learned judge declined to discharge the jury at that stage of the trial, and that was a proper exercise of discretion. If the judge did indicate frustration with the answers JZ gave, by a facial gesture, the reason for that would have been obvious enough, namely that frustration the judge described. While I agree with CX that JZ did not refuse to answer any questions, JZ was much slower in coming to the point than either the learned judge or his counsel had wanted him to be. But it is quite wrong for CX to say that the judge "lied" about JZ refusing to answer questions. That was an unnecessarily inflammatory submission, which JZ had prepared for CX's case. The learned judge's interventions were, as counsel repeatedly conceded, appropriate, and the instructions the judge gave the jury included the ones the judge said she would give. That included the instruction that any opinion the jurors thought she might have did not matter at all,[81] and that the jurors should put to one side any of the moments of humour which had inevitably occurred in the course of a long trial.[82]
[139]
[101] That was not an end of the complaints about this topic. When the jury were asked to retire, counsel repeated a further complaint by CX, that the learned judge had been "pulling faces" during the addresses and in her summing-up, and the learned judge responded. "I reject that completely." That rejection was supported by the Prosecutor, who stated that she had seen nothing, and the judge said "I've been very careful".[83] That late complaint just showed how sensitive CX was to the process of the trial, but not that there was any error in it. That ground of appeal should be dismissed.
[140]
[102] Ground 8 complains that there was no forensic examination of any of the handwritten evidence on which the prosecution relied. That included the handwritten note on the bottom of count 20, and the signature on the booking register at the motel. But CX's brother-in-law was not challenged in cross-examination with the suggestion that his evidence was wrong, where he swore he saw CX write the handwritten part on count 20, and the Crown established by calling the motel keeper that the record, bearing what appeared to be CX's signature, was genuine. For it not to be his signature an extraordinarily clever and complex forgery had occurred, presumably many years after the event. The evidence that was led was sufficient to establish it was CX's handwriting and signature on those respective documents.
[141]
[103] Ground 9 was essentially a complaint that not enough had been made at the trial, by the learned judge, of what CX regarded as the attempt by A and B to blackmail him into writing a letter apologising to them and admitting the alleged offences, and of the offences committed by B. But the evidence of those admitted offences was before the jury, as was the transcript of the telephone call. The fact that B had committed offences of dishonesty was established during the trial, and was irrelevant to whether CX had committed sexual offences on B.
[142]
[104] Ground 10 complains that "Some jurors were caught sleeping during the trial". What occurred was that during CX's cross-examination, his counsel raised a concern that juror number 2 seemed to be either asleep "or sitting there with his eyes closed, on a couple of occasions yesterday, and I think I saw it some days before."[84] The judge asked what she was supposed to do, and counsel replied "Make them all wake up". CX's counsel identified a second juror likewise possibly offending, and the judge said she had not noticed it. When the jury returned, the learned judge advised that if any of them wanted a break, or were feeling sleepy or tired or just needed some fresh air, that a juror should just raise their hand, because it was important that the jurors concentrate on the evidence; if they wanted a 10 minute break, the judge would cause one.[85] That was an entirely proper way of dealing with that matter and the record shows no further difficulties with any jurors, and does not reveal that any juror took part in the deliberations without a proper understanding of the evidence.
[143]
[105] The last ground of appeal was a complaint that a Mr Page was not called to give evidence of having received an anonymous letter. CX wanted to put in evidence an unsigned letter said to have been received by a Ray Page. He proposed that it be admitted pursuant to s 93 of the Evidence Act 1977 (Qld), ignoring that to be admissible under that section it had to be a record relating to a trade or business. The document, which was also sought to be introduced by CX in his appeal after his first conviction, is not a record relating to a trade or business, and as described in the judgment in that first appeal, is replete with hearsay. Even if put before the jury it would establish nothing that would actually contradict the truth of any allegation made by either A, B, C, or D in evidence; the thrust of the document is the belief of its author, apparently based on hearsay, that the motive of CX's accusers was financial. Strictly speaking, if that was their motive, that fact does not establish that their evidence was not honest. The document was not admissible, and its non-admission did not result in any miscarriage of justice.
[144]
[106] It follows that I would dismiss all grounds of appeal against the convictions, which should stand.
[145]
[107] I add that JZ wrote to the Registrar, after the appeal was heard, asserting that a prisoner in Wolston Correctional Centre had provided a written statement repeating a comment the prisoner heard a named barrister - whom JZ understood to be the prisoner's barrister - make between 1 July and 7 July 2005, that is, during CX's trial the subject of this appeal. The comment allegedly named both the trial judge and CX, said CX had faked an injury to get out of coming to court, and that the trial judge had made arrangements to have CX "transferred to Brisbane because she wants to get him and make sure he's convicted because he is a real rock spider."
[146]
[108] The named barrister is a Crown Prosecutor. If he made the quoted remark, and was in turn accurately quoting a statement he had heard the learned judge make, then an affidavit from the Crown Prosecutor would show bias against CX. But the jury, not the judge, decided the verdicts. There were very few occasions when the judge could have done or not done something because of bias, and the record shows the judge gave quite acceptable reasons for every step the judge took. JZ's letter to the Registrar shows CX knew of this matter long before the appeal, and probably on 8 July 2005, during the trial. Yet no attempt was made to have the barrister produced as a witness at the appeal, and it is only the barrister who could give admissible evidence. Finally, a trial judge cannot arrange a transfer of a prisoner: that is for the Corrective Services Commission. This last letter from JZ simply continues an irrelevant and abusive focus by both brothers on the trial judge, not on the evidence, and should be ignored.
[147]
Application for leave to appeal against sentence
[148]
[109] The matters recited in this judgment establish that the sentence imposed was appropriate.
[149]
[110] I would dismiss the appeal against conviction and the application for leave to appeal against sentence.
[150]
[111] ATKINSON J: I agree with the reasons for judgment of Jerrard JA and with the orders he proposes.
[151]
[112] DOUGLAS J: I also agree with the orders proposed by Jerrard JA and with his reasons.
[152]
[1] CX unsuccessfully appealed both the convictions and the sentences in respect of that other child; see R v CX[2005] QCA 222; CA No 353 of 2004, 24 June 2005.
[23]R v TN[2005] QCA 160 at [97] (Keane JA); CA No 230 of 2004, 13 May 2005; R v DAK[2005] QCA 211 at [18] (Keane JA); CA No 45 of 2005, 17 June 2005; R v DAL[2005] QCA 281 at [8] (McPherson JA) and [21](Keane JA); CA No 74 of 2005, 12 August 2005.