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[2025] QCA 262
respondent. Leave to adduce the fresh and new evidence is refused. The appeal against conviction is dismissed.
The Court of Appeal dismissed the conviction appeal. It accepted that the complainant’s evidence had features requiring close scrutiny, but found that those matters had been explored at trial and appropriately put to the jury. The jury could rationally acquit on the count involving the disputed camera evidence and convict on the other counts. The Black direction and the time taken to reach verdict did not show that the jury was pressured. Evidence from related domestic violence proceedings did not justify reopening the appeal.
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2,068 words · generated 07/10/2026
The Queensland Court of Appeal dismissed R’s appeal against convictions for three counts of rape and one count of indecent treatment of a child under 16. The jury acquitted R on a second indecent-treatment count. The appeal was heard by Bradley and Doyle JJA and Williams J, with Williams J giving the principal reasons. Bradley JA and Doyle JA agreed with the proposed orders and the central conclusions. Doyle JA added reasons on the unreasonable-verdict ground. The orders refused leave to adduce further evidence and dismissed the appeal.
No linked legislation citations have been extracted yet.
The complainant was R’s daughter. The indictment alleged conduct at the family home in Eatons Hill, across date ranges between 2007 and 2013. The particulars included alleged digital penetration, touching while the complainant masturbated, recording her, and oral sexual contact. At the trial, the complainant gave recorded evidence at age 19 about events said to have occurred when she was approximately five to seven years old. R denied the allegations and gave evidence in his own defence. The evidence and the defence raised issues about the complainant’s recall, the timing and content of her disclosures, her mental health, the relationship between family members, and the complainant’s stepmother’s possible motive.
The jury deliberated over two days. After about four and a half hours of deliberation on the second day, it asked what would happen because it could not reach a unanimous vote. The trial judge gave a Black direction, then explained the practical timing for continuing deliberations. The jury returned guilty verdicts on Counts 1, 2, 3 and 5, and a not-guilty verdict on Count 4. The verdict came about 40 minutes after the direction.
On appeal, R’s seven grounds alleged, among other things, that the convictions were unsafe, that the trial involved prejudicial comments and unfairness, that evidence had not been disclosed or investigated, that witnesses had colluded or been affected by memory contamination, that the verdicts were inconsistent, and that the Black direction was premature or coercive. After the hearing, R also sought leave to rely on fresh and new evidence, much of it connected to domestic violence proceedings involving the complainant’s stepmother.
The central legal question was not whether the appellate judges would have reached the same factual conclusions as the jury. Under s 668E(1) of the Criminal Code (Qld), the Court had to decide whether the verdicts were unreasonable or could not be supported having regard to the evidence. Doyle JA stated the M v The Queen test: the appellate court asks whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of guilt [7]–[9]. That assessment is independent, but it must give full regard to the jury’s responsibility for deciding guilt and its advantages in seeing and hearing the evidence [9].
The Court recognised substantial features capable of bearing on reliability. Doyle JA noted the period when the complainant accepted she could not recall the conduct, the gradual emergence of recollections, an error about a bedroom door, her mental health during the relevant period, and disputed details including the camera, the appellant’s circumcision and pubic hair [11]–[16]. The Court did not treat those matters as immaterial. Its conclusion was that they had been explored at trial and addressed through the judge’s directions, and that the jury could still accept the complainant’s evidence on some counts beyond reasonable doubt [17]–[18], [431]–[437].
Williams J examined the evidence relating to each convicted count and the elements that were disputed [301]–[310]. The rape counts turned principally on whether the alleged penetrations occurred. The indecent-treatment count turned on whether the touching occurred and was indecent. Several other elements, including age and the family relationship, were not contested on the trial evidence [302]–[309]. The Court concluded that, after considering the whole record, the verdicts on those counts were open to the jury [435]–[437].
The acquittal on Count 4 did not make the remaining verdicts logically inconsistent. The Court pointed to disputed evidence about the camera and chair, and the specific evidence relating to that count. It reasoned that the jury could have had reasonable doubt about Count 4 while being satisfied about the other counts [252]–[253], [268]–[272]. The judge had also directed the jury to return separate verdicts and assess each offence on its own evidence [220]–[221]. The Court therefore found a rational basis for the different outcomes, rather than an indication that the jury had compromised its duty.
The Court rejected the claim that the Black direction coerced the jury. The jury reported difficulty reaching unanimity after about four and a half hours. The direction was given with the agreement of counsel, and the judge addressed the time of day and the prospect of continuing later or the next day [39]–[43], [283]–[285]. The fact that the jury reached its verdict around 40 minutes later did not establish that it had been pressured. The Court identified no evidence that any juror felt compelled to agree [286]–[287].
Finally, the proposed appeal evidence did not establish a miscarriage of justice. The Court treated much of it as directed to the stepmother’s credibility, an issue already explored at trial. Some messages existed before trial and were known to R, even though they were later attached to affidavits [440]–[448]. The Court also considered that the evidence was not directly probative of the elements of the convicted offences [452]. Applying the fresh and new evidence framework discussed in R v SDT, it found no significant possibility that a reasonable jury would have acquitted on the fresh evidence and no basis to receive the new evidence to avoid a miscarriage [446], [453]–[455].
The judgment presents itself as an application of established appellate principles, not as a change in the law. For unreasonable-verdict appeals, it applies s 668E(1) and the test in M v The Queen. The appellate court must independently review the whole evidence, but cannot discount the jury’s central fact-finding role or its opportunity to see and hear witnesses [7]–[9], [298]–[299]. The judgment also refers to R v ZT for a fuller account of the jury’s advantages, which may extend beyond testimony to the jury’s collective assessment of how evidence unfolds and how people speak and behave [9].
For inconsistent verdicts, Williams J relied on the approach summarised in R v CCX and the High Court authorities M v The Queen and MacKenzie v The Queen. The question is whether the verdicts can be reconciled by a logical and reasonable basis, not whether the appellate court would itself have made the same findings [262]–[269]. Here, the disputed particulars of Count 4 gave the Court a count-specific explanation for the acquittal.
On jury directions, the reasons apply the principles associated with Black v The Queen to the circumstances of the deliberations. The Court’s conclusion was fact-specific: after the jury reported an impasse, the direction and the arrangements for continued deliberation were appropriate in this trial [283]–[287]. The judgment does not set a general minimum deliberation period before a Black direction may be given.
For new material on appeal, the judgment distinguishes fresh evidence from new evidence and applies the framework set out in R v SDT [438], [446]–[455]. The decision does not displace that framework. It illustrates its application where proposed evidence largely concerns credibility already tested at trial and does not materially bear on the elements of the offences.
Doyle JA stated that the appeal court asks whether “upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt” [8]. In plain English, the appeal is not a fresh trial. The court checks whether the jury’s conclusion was a conclusion it could reasonably reach on the evidence.
Doyle JA also stressed that an appellate court must give “full regard” to the jury’s responsibility and its benefit of having seen and heard witnesses [9]. The point is not that a jury’s view is immune from review. Rather, the appellate court must account for the jury’s position when assessing credibility and other factual matters.
Williams J’s explanation of the inconsistent verdict ground was that there was “a logical and reasonable basis for the acquittal on Count 4” because of conflicting evidence relevant to that offence [268]. Put simply, the jury could have doubts about the camera-related count without necessarily having reasonable doubt about every other count.
On the Black direction, Williams J observed that there was no evidence that any juror felt pressured by the judge’s encouragement to continue deliberating [286]. The short interval between the direction and the verdict was not enough, on its own, to prove coercion.
For the additional evidence application, Williams J concluded that the proposed material did not raise such a doubt about guilt that the verdicts could not stand [453]. The court was not deciding the domestic violence proceedings. It was deciding whether the proposed material met the test for being received in this criminal appeal.
The judgment is relevant to criminal appeals alleging that a jury verdict is unreasonable where the prosecution case depends significantly on witness evidence and the defence identifies inconsistencies, delayed recollection, disputed details or credibility concerns. It shows the need to assess those issues against the whole record, including the trial directions and the jury’s role, rather than treating any one discrepancy as automatically determinative [298]–[300], [431]–[437].
It is also relevant where a jury convicts on some counts but acquits on others arising from overlapping evidence. The key question is whether count-specific evidence or differences in the elements provide a logical explanation for the verdict pattern [268]–[272]. A difference in verdicts does not itself establish irrationality.
For a challenge to a Black direction, the circumstances matter: what the jury communicated, how long it had deliberated, what the judge said, what options were left open, and whether there is evidence of pressure. In this case, the timing of the verdict after the direction did not prove coercion [283]–[287].
For an application to adduce evidence after conviction, the decision highlights the importance of identifying whether the material is fresh or new, when it existed or could have been found, what issue it bears on, and whether it could materially affect the assessment of miscarriage of justice [438]–[455].
The judgment was delivered on 19 December 2025. The supplied judgment contains no decisions by later courts applying, distinguishing or otherwise treating R v HDC. It is therefore not possible to give a source-grounded account of later treatment from the materials provided.
The judgment itself explains and applies earlier authorities. It draws on M v The Queen and R v ZT for the unreasonable-verdict analysis [8]–[9], and refers to MacKenzie v The Queen and R v CCX when considering inconsistent verdicts [262]–[269]. It applies the further-evidence framework discussed in R v SDT [446]–[455]. Those are the relationships stated in this judgment, not evidence of how later courts treated R v HDC.
The judgment does not decide that every delayed or gradually emerging recollection should be treated in a particular way. It assesses the complainant’s evidence and the trial directions in this record. The broader significance of a particular memory issue will depend on the evidence and the way it bears on the elements and credibility issues in another case.
Nor does the decision establish a fixed amount of jury deliberation required before a Black direction is appropriate. The Court described the timing in this trial as appropriate in light of the jury’s note and the circumstances [283]–[285]. It does not prescribe a universal threshold.
The judgment also does not set out a general rule that an acquittal on one count will always reconcile convictions on other counts. Its conclusion depended on the disputed evidence relevant to Count 4 and the separate-count directions [268]–[272].
Finally, the judgment gives no determination of the merits of the domestic violence proceedings or of any factual allegations made within them. It holds only that their potential outcome would not determine whether the 2024 criminal trial was fair, and that the particular proposed evidence did not satisfy the appeal evidence threshold [451]–[455].
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v HDC [2025] QCA 262
PARTIES: R / v / HDC / (appellant)
FILE NO/S: CA No 152 of 2024 / DC No 2191 of 2022
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: District Court at Brisbane – Date of Conviction: 13 June 2024 (Kent KC DCJ)
DELIVERED ON: 19 December 2025
DELIVERED AT: Brisbane
HEARING DATE: 9 September 2025
JUDGES: Bradley and Doyle JJA and Williams J
ORDERS: Leave to adduce the fresh and new evidence is refused. The appeal against conviction is dismissed.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted by jury of three counts of rape and one count of indecent treatment of a child under 16 – where the appellant appealed his conviction on the ground that the verdict was unsafe and unsatisfactory – where the appellant pointed to inconsistencies in the complainant’s evidence and raised credibility issues including in respect of “recovered memories” – where the appellant sought to adduce further evidence – whether the directions given by the trial judge were appropriate in the circumstances – whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant on the whole of the evidence – whether the further evidence, if adduced, would demonstrate that there had been a miscarriage of justice / CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was charged with three counts of rape and two counts of indecent treatment of a child under 16 – where the appellant was convicted of three counts of rape and one count of indecent treatment of a child and acquitted of one count of indecent treatment of a child – where there were inconsistencies in the complainant’s evidence and credibility issues – whether there was a logical and reasonable basis for the acquittal on one count / CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – OTHER MATTERS – where the jury indicated that they were unable to reach a unanimous verdict – where a Black direction was given after five hours of deliberation – where the jury arrived at a verdict 43 minutes after the direction was given – whether the direction had a coercive effect on the jury or otherwise caused a miscarriage of justice / Criminal Code (Qld), s 668E / M v The Queen (1984) 181 CLR 487; [1994] HCA 63, cited / MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited / R v CCX [2022] QCA 260, cited / R v ZT (2025) 281 CLR 137; [2025] HCA 9, cited
COUNSEL: The appellant appeared on his own behalf / M A Green for the respondent
SOLICITORS: The appellant appeared on his own behalf / Director of Public Prosecutions (Queensland) for the respondent
BRADLEY JA: I am indebted to Williams J for an extensive review of the whole of the evidence at the appellant’s trial. In the context of the parties’ respective submissions on the appeal, my assessment of the sufficiency and quality of the evidence accords with her Honour’s conclusion that it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt in respect of Counts 1, 2, 3 and 5 of the indictment. I also agree, for the reasons stated by her Honour, that leave to adduce further evidence, whether fresh or new, should be refused.
I agree with Doyle JA that the learned primary judge directed the jury appropriately about features of the evidence that the appellant contended bore upon the reliability of the complainant’s evidence.
It follows that I concur with their Honours’ conclusions that the appeal should be dismissed.
DOYLE JA: I have had the advantage of reading in draft the reasons for judgment of Williams J. I gratefully adopt her Honour’s statement of the issues in the appeal, and the facts and evidence relevant to the various grounds of appeal.
I agree with the Orders her Honour proposes and with her Honour’s reasons in respect of grounds two to seven.
I wish to add some brief additional reasons in respect of ground one, but otherwise express my concurrence with her Honour’s reasons in respect of that ground as well.
Section 668E(1) of the Criminal Code states that this Court “shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or can not be supported having regard to the evidence.”
In M v The Queen (1984) 181 CLR 487 at 493 it was established that this required an appellate court to ask itself “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.” As Williams J has pointed out this requires the Court to analyse the whole of the evidence given, with the focus on those aspects drawn to its attention by the parties.
In R v ZT (2025) 281 CLR 137 Gageler CJ, Gleeson, Jagot and Beech-Jones JJ discussed what the requirement in M v The Queen involved. From that discussion these things emerge:This Court “must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the ‘benefit of having seen and heard the witnesses.’ To the contrary, the appellate court is obliged to pay ‘full regard to those considerations’”: [7].The advantages which the jurors enjoyed “are not confined to witness testimony but may extend to all of the evidence adduced at trial” together with “the application of the jurors’ collective wisdom and experience of ordinary affairs, from seeing and hearing the evidence as it unfolds when evaluating factual matters, especially witness credibility”: [9].The full allowance which the appellate court is to give to the jury’s advantages should recognise that they may extend “to an assessment of matters such as: the tone and manner in which the witness or participants spoke or conducted themselves; their maturity; their emotional state and intelligence; and how they interact with others…” and that “[t]he jury can consider those matters possessing a breadth of understanding of how different people speak and behave in such circumstances that a judge may not have.”: [10].
Grounds of appeal
The appellant’s grounds of appeal are as follows:Ground 1: The verdict is unsafe and unsatisfactory in light of inconsistent, uncorroborated, and unreliable evidence.Ground 2: Prejudicial commentary, prosecutorial misconduct, and judicial errors undermined the fairness of the trial.Ground 3: Evidentiary gaps, disclosure failures, and an improper indictment expansion denied procedural fairness.Ground 4: Witness collusion, credibility issues, and pervasive prejudicial publicity compromised the trial’s integrity.Ground 5: Factual inconsistencies, the improper admission of hearsay, and prejudicial witness conduct rendered the verdict unsafe.Ground 6: Inconsistent verdicts and a failure to apply the standard of proof beyond reasonable doubt led to an irrational outcome.Ground 7: A premature and coercive Black direction undermined genuine jury deliberation.
The appellant expands on each of these grounds in a summary form in the first three pages of his written submissions. The appellant then further expands on each of these grounds in an attachment to his written submissions of 12 pages. These two documents need to be considered together to fully understand the appellant’s contentions.
The appellant’s written submissions did not include a summary of evidence. The respondent included a summary of evidence at annexure A to their written outline. It was not contested. Before considering the grounds of appeal, it is of assistance to consider the charges and an overview of the facts.
Charges and trial
On Indictment 2191 of 2022 the appellant was charged with five counts:Counts 1, 2 and 5: Rape (Domestic Violence Offence).Counts 3 and 4: Indecent treatment of a child under 16.
Counts 1 and 2 are two separate charges of rape “on a date unknown between the thirty-first day of December, 2007 and the first day of May, 2010 at Eatons Hill”.
Counts 3 and 4 are separate charges within the same date range as Counts 1 and 2. Whilst both are charges of indecent treatment of a child under 16, they are on different bases, namely:Count 3: that the appellant unlawfully and indecently dealt with the complainant, a child under 16 (who was under 12 years old), to the appellant’s knowledge his lineal descendant, and under the care of the appellant (ss 210(1)(a), 210(3), 210(4) and 564(3A) of the Criminal Code).Count 4: that the appellant without legitimate reason recorded an indecent visual image of the complainant, a child under 16 years (who was under 12 years old) to the appellant’s knowledge his lineal descendant, and under the care of the appellant (ss 210(1)(f), 210(3), 210(4) and section 564(3A) of the Criminal Code).
Count 5 is a charge of rape at a later point in time, being “on a date unknown between the thirtieth day of June, 2011 and the first day of January, 2013 at Eatons Hill”.
The appellant pleaded not guilty to Counts 1 to 5 at the commencement of the trial.
The jury were provided with a statement of the particulars in respect of Counts 1 to 5 which contained particulars of the charges as follows:1Count 1: “The [appellant] penetrated the complainants (sic) labia with his finger or fingers. This occurred at a time she was in the downstairs bathroom of the house the complainant was living in.”Count 2: “The [appellant] penetrated the complainants (sic) anus with his finger or fingers. This occurred shortly after count 1 in the same downstairs bathroom of the house the complainant was living in.”Count 3: “The [appellant] touched the complainant on the upper body while she masturbated over the clothing. This happened in an upstairs bedroom of the house the complainant was living in.”Count 4: “The [appellant] used a video camera to film the complainant masturbating over her underwear. At the time this occurred seated on a chair. This occurred in an upstairs bedroom of the house the complainant was living in.”Count 5: “The [appellant] penetrated the complainant’s mouth with his penis. This occurred in the ensuite bathroom of the house the complainant was living in.”
The trial proceeded with several witnesses giving evidence as part of the respondent’s case, including:the complainant’s stepmother, who was the appellant’s former partner (the complainant’s stepmother);the complainant’s mother and former wife of the appellant (the );the complainant; andRenee Pavicic, the arresting officer ().
“We are not able to achieve a unanimous vote. What are the next steps?”
At that stage the jury had been deliberating for approximately four and a half hours.2 Counsel for the appellant and the respondent agreed that a Black direction was appropriate.
The trial judge also proposed to follow what was done in BCG3 and at that stage not give advanced warning of the possibility of a majority verdict. Neither Counsel raised any issue with this course.
At 3.46 pm the jury was brought back into the courtroom and the trial judge gave a Black direction. The direction given was in the form of the Benchbook direction,4 with only minor differences.
Given the time of day that the direction was given, the trial judge went on to make the following comments before the jury retired at 3.52 pm:
“Now, having said all of that, the other thing that has some significance at the moment is the time of day. It is now 10 to four in the afternoon, and consistent with what you did yesterday afternoon, I imagine you would not presently plan staying after five – sorry, after 4.30. Of course, it is always possible you might get to the stage that if you think another five minutes would be decisive, then well and good. But as I say, we are in your hands.
My inclination is to ask you to keep deliberating, as I have said, with the proviso that it seems unlikely you will want to stay after 4.30. And depending what happens in that time, there may be some other directions that I give you in the not-too-distant future. I do not want to keep you in too much anticipation, but the time has not arisen yet for any other further possibilities. So I will ask you to retire again and continue deliberating, taking into account what I have said. If it is suitable, I might reconvene the Court at 4.30 and see if you want to go home at that stage, and if you do, I will probably repeat the directions that I gave you yesterday afternoon. Thanks for your attention. I will ask you to retire again.”5
At 4.29 pm when Court was to resume, the Bailiff indicated that the jury had reached a verdict. The jury returned a verdict of guilty on Counts 1, 2, 3 and 5 and not guilty on Count 4. The appellant was discharged on Count 4.
The matter was adjourned for sentence in respect of Counts 1, 2, 3 and 5. The appellant was subsequently sentenced but has not appealed the sentence.
Summary of evidence
The following is a summary of the evidence at trial. For the purposes of Ground 1 (unsafe and unsatisfactory verdict) the evidence at trial needs to be reviewed in full. This summary of the facts will be supplemented by a further consideration of relevant evidence for the purposes of Ground 1. Further, in respect of Grounds 2 to 7, additional facts will be considered in the context of the consideration of the issues raised in respect of those particular grounds.
The complainant’s evidence at trial was by way of a recording. The complainant was 19 at the time of the recording.
The complainant’s evidence included:She was residing at an address in Eatons Hill at the time the events occurred.In respect of the first occasion:She was naked in the bath. The appellant was fully clothed, outside the bath.The appellant put his finger on her vagina and rubbed inside the inner folds.The appellant inserted a finger into her anus.On another occasion in the upstairs bedroom, she was lying on the bed with her feet hanging over the edge and the appellant was on top of her. They were both fully clothed. The appellant was feeling her upper body, chest and arms whilst she was masturbating over the top of her clothing. She was around 5 or 6 years old.On another occasion she was sitting on a wooden chair and masturbating over her underwear whilst the appellant filmed her. She was about 5 or 6.On another occasion she was in the ensuite bathroom and she was showering with the appellant. They were both naked and she sucked his penis. She was about 7.
The complainant’s stepmother gave evidence including as follows:She started seeing the appellant in August 2010 and moved in with the appellant mid-July 2011 at the home in Eatons Hill.The appellant would always be home whenever the complainant came to visit.It was a rare occurrence that the complainant would shower with the appellant. It occurred maybe once a month, but the complainant’s stepmother was often not around when it happened.She recalled in August 2021 the complainant told her she thought the appellant had sexually assaulted her when she was younger.The complainant did not want to go into details. The complainant did say that the appellant had touched her somewhere he should not have touched her.
Under cross-examination, the evidence of the complainant’s stepmother included:Her relationship with the appellant deteriorated quickly in 2020.She was in a custody dispute with the appellant regarding their daughter (the complainant’s stepsister) at the time that the complainant made the disclosure to her.The complainant had told her that the sexual abuse occurred when she was 6 to 8 years of age, the memories had only recently resurfaced, and the complainant was scared they were not real.The complainant’s stepmother denied that she had “planted memories” in the complainant’s mind to in effect bolster her own position in the custody proceedings regarding her daughter, the complainant’s stepsister.
Consideration of grounds of appeal
There is considerable overlap between the grounds, with many features relied upon by the appellant in support of his contentions. At the hearing, the appellant indicated that Ground 1 was the main or overarching ground of appeal and the other grounds fed into it. While they have been articulated as different grounds and will be considered as such, the underlying facts are also relevant to the appellant’s arguments in support of Ground 1.6
In these circumstances, Grounds 2 to 7 will be dealt with first before considering Ground 1.
Ground 2: Prejudicial commentary, prosecutorial misconduct, and judicial errors undermined the fairness of the trial.
The appellant contends that the trial judge failed to discharge his duty by not “intervening against the improper and prejudicial remarks of witnesses”. Further, that the respondent’s closing submissions were improper in that the respondent in effect “vouched” for “witness credibility” and ridiculed the defence.
Turning to consider the alleged misconduct relied upon by the appellant.
Firstly, the appellant contends that at the commencement of the trial, the trial judge referred to the “Brittany Higgins case”, described in the appellant’s outline of submissions as a “high-profile and politically charged matter unrelated to the present case”. It is submitted that in doing so, the trial judge failed to discharge his duty, departed from “judicial neutrality”, and denied the appellant procedural fairness.
Further, the appellant contends that the trial judge did not direct the jury to disregard prejudicial witness remarks, intervene against speculative statements from the prosecution, or correct unsubstantiated claims. These failures “risked contaminating the jury’s objectivity”, particularly through the reference to the high-profile case.
The second contention relates to the respondent’s closing submissions. The appellant relies upon the “multiple unqualified and prejudicial assertions” in the respondent’s closing address, allegedly including:“We know this is how someone behaves when abused”.“We know this is how trauma affects memory”.
The appellant contends that these statements amount to inadmissible expert opinion.
Further, by expressing these opinions in respect of trauma and memory in closing submissions, the impression given was that there was some expert authority for these statements, when there was no evidence of this led at trial. The effect was to undermine the presumption of innocence and prejudice the appellant’s ability to get a fair trial.
The appellant also contends that, by statements in the closing submissions, the respondent also in effect vouched for the credibility of the complainant. This “usurped” the jury’s role and risked unduly influencing the jury. It is contended that this conduct may, in itself, amount to a miscarriage of justice.
The third misconduct relied upon is in relation to the evidence of the complainant’s stepmother, including the following statements:“Because for the last three years we’ve had to move four times for safety”; and“[the appellant] had sort of convinced me that [the complainant’s mother] was…”.
The appellant complains that these statements were unsupported by evidence and irrelevant and were admitted into evidence without challenge or direction. As they lack probative value, the effect of these statements resulted in unfair prejudice and “improperly inflame[d] the jury’s emotions”.
“It was put to you that you might have planted memories in [the complainant’s] mind; you don’t have any talents as a mesmerist or anything along those lines?”
The appellant contends that there was audible laughter in the Court. Further, the appellant contends that this was sarcasm and directly ridiculed a legitimate defence and no direction was given to cure the prejudice.
It is also submitted that the same concept was repeated in the respondent’s closing address, with the defence being referred to as “absurd” or “fanciful”, and was likely deployed to sway the jury’s assessment of the defence case, particularly where credit was central. Consequently, the conduct compromised the appellant’s right to a fair trial.7
The fifth basis for Ground 2 is the cumulative effect of these prejudicial factors. The features include:The improper aspects of the respondent’s closing submissions.The admission of irrelevant and “emotionally charged” statements.Derisive and dismissive conduct towards the defence in cross-examination.The trial judge’s failure to provide directions to cure these issues.The trial judge’s failure to intervene and stop the conduct.
The appellant submits that the cumulative effect was that the jury was left with a prejudicial impression. Further, that the accumulated effect undermined the integrity of the trial process and gives rise to a real risk of a miscarriage of justice.
Overall, the appellant contends that Ground 2 is made out and the cumulative effect constitutes a miscarriage of justice warranting appellate intervention.
In response the respondent contends that Ground 2 fails at each stage and must be dismissed.
Firstly, the respondent submits that it was the appellant’s counsel who referenced the matter complained of. In any event, the jury was instructed to ignore anything outside of the courtroom in undertaking the assessment of the evidence.
Second, the respondent submits that the prosecutor did not make the comments relied upon by the appellant. While the prosecutor did address delay, the experience of recalling a genuine memory, and that offending of this kind happens, these were appropriate comments.
The respondent contends that there are no statements by the prosecutor that were improper or capable of causing a miscarriage of justice.
Third, in respect of the evidence of the complainant’s stepmother that:she had to move for “safety”, this was stopped by the appellant’s counsel before a further explanation was given.the appellant convinced her of something in respect of the complainant’s mother, this cannot be construed to give rise to prejudice to the appellant. Further, the evidence was cut short.
Further, there was no application at trial for a mistrial or a direction in relation to these statements. Whilst not determinative, this is a relevant consideration. It also supports the conclusion that, in the context of the trial, an application for a mistrial or a further direction was not necessary.
Consideration
In respect of the reference to the Brittany Higgins case this arises in two contexts: one implied reference to the Brittany Higgins trial and one express reference.
Firstly, the trial judge in his opening gave the usual warning to the jury about only acting on the evidence and not making any independent inquiries. As part of that instruction, the trial judge made the following statement:
“You’ll be probably aware, or you’ll remember it when I tell you about it, of a famous example of this in a trial in the ACT about 18 months ago, where after a few days of deliberation at the end of a rape trial, a juror brought into the jury room some material that they’d searched on the internet, and the trial had to be aborted and, indeed, never proceeded again. So that’s an example of the rather catastrophic results that can flow. So don’t do it. Okay.”8
It can be inferred from this statement that the trial judge was impliedly referring to the Brittany Higgins trial. This statement was an example of the risk of the trial needing to be aborted if a juror made their own enquiries contrary to the directions given. There is nothing improper in the direction that was given. The statement was nothing more than an example.
On the first day of the trial, counsel for the appellant in opening the defendant’s case made an express reference to the Brittany Higgins case. Counsel for the appellant said:
“This isn’t the Court of Common Opinion. This isn’t a place for ‘Me Too’. It’s not a place for hashtags. It’s not a place for Bruce Lehrmann and Brittany Higgins. It’s not a place for George Pell. This is about this case, and that’s it. So all of that other stuff that you might have read in the media about criminal trials and all that ‘Me Too’ – and I don’t mean to be disrespectful at the moment, but that stuff has no place in your jury room when you are deciding this matter. You decide it on the evidence.”9
The statement by counsel for the appellant at trial reinforces the trial judge’s direction to the jury to decide only on the evidence and to ignore any feelings of sympathy or prejudice.
The trial judge, in making the comment that he did, did not depart from “judicial neutrality” as alleged by the appellant. Further, counsel for the appellant’s comments were also by way of an example and were consistent with the trial judge’s directions in the opening and later the summing-up. In the summing-up, the trial judge made the usual directions, including as to the jury only acting on the evidence and that statements by counsel are not evidence.
The appellant also contends that the combined effect of the reference to the high-profile case and the failure to direct the jury to disregard prejudicial remarks, intervene against speculative statements from the respondent, or correct unsubstantiated claims resulted in the jury’s objectivity being contaminated.
This is not borne out on the facts where the jury did acquit on Count 4 and convicted on Counts 1 to 3 and 5. Further, the trial judge did make the usual directions in the summing up as to the jury’s task and the importance of acting only on the evidence. Ultimately issues of witness credit were matters for the jury and the appropriate directions were given to the jury in this regard.
In respect of this first issue, there has been no failure by the trial judge to discharge his duty, no denial of procedural fairness, and there is not a proper basis to conclude that the jury’s objectivity was contaminated as alleged.
Turning to consider the second issue raised in Ground 2 in respect of the respondent’s closing submissions. It is important to look at the actual words used in the respondent’s address, and also at the closing address as a whole. The appellant has paraphrased two statements and attributed them to the respondent, but they are incomplete and not direct quotes.
The respondent’s address referred to trauma and memory in a number of places. The relevant statements include as follows:“… you’ve heard [the complainant] – you’ve heard from [the complainant] that she’s sure these memories are real. You’ve heard from [the complainant] about how her own father dealt with her as a very young child. That he penetrated her vagina and anus with his fingers. That he had her perform oral sex on him, and that he indecently treated her in other ways. Now, it’s clear here that for many, many years, she repressed that. She didn’t address what would be horrific foundational memories. The exact kind of memories that you might think someone would try to push down, but [the complainant] couldn’t keep it repressed forever and, eventually, came forward.”“... So when assessing this, keep in mind there’s no rule book to being the victim of childhood sexual abuse.
Not everyone runs screaming from the room when these sorts of things happen to them. And we know now, people can go years without reporting this sort of offending. Decades, even. It’s around a decade here. People have reasons to push these things down or proceed as if the abuse didn’t occur. In this case, that she didn’t raise the alarm immediately makes perfect sense. It’s logical. She was a five to seven year old girl when these things happened to her. Further, consider the acts she speak[s] of include examples of her masturbating, her taking sometimes an active role in things. Things that, for a child, would be a barrier for talking about it or even serve to make what happened seem okay. And you’ve heard her evidence that she pushed this down, and that it came back to her when she was reading an article.
… Not wanting to think about it, address that or come forward until later in life is understandable … It makes sense.”
In the context of the type of offending and a complainant’s memory being in relation to acts that occurred years before, the submissions made by the respondent are not unusual. There is nothing inherent in the statements made in the respondent’s address which could be properly characterised as “prejudicial assertions” or “inadmissible expert opinion”.
Further, the matters raised in the respondent’s address are consistent with the trial judge’s comments on this issue. The trial judge said in the summing-up:
“Remember what I said: the facts are a matter for you, so ignore this comment if you disagree. But the comment is that you might think there are no rules about how people who engage in sexual abuse of children behave, nor are there any rules about how their victims behave. It is difficult to say how anyone who is placed in that position is expected to behave afterwards. For example, the law previously assumed that people who were victims of sexual abuse would promptly complain. We now know that there are many victims, particularly children, who do not complain for years afterwards. So, it is dangerous to make general assumptions about how such people should behave. There is no rule book. But this is, again, a comment only. It is a matter for you whether you take that into account.”
“You do need to scrutinise the evidence of the complainant with great care before you can arrive at a conclusion of guilt. That is because of a couple of aspects of her evidence. She was very young at the time of the alleged offences. Between five and seven, I think. Although the accounts of that varied a little bit. That is not to suggest that young people fall into a category that should just be disbelieved. There is no blanket rule about anything like that. But the fact is, she was very young, and she is recounting something much later that happened to her.
Secondly, and perhaps more importantly, the complainant told both [the complainant’s stepmother] and her mother that the memories had recently surfaced, and she was scared that maybe the memories were not real. So that is another aspect that means you would have to scrutinise her evidence with great care. You should only, therefore, act on her evidence if, after considering it, with that warning in mind and all of the other evidence, you are convinced of its truth and accuracy.”
This direction, at the time and in the particular factual circumstances, was not unusual. On the basis that the jury is taken to follow directions, this warning made it clear that the jury needed to carefully consider the complainant’s evidence. Again, the acquittal on one count is consistent with the jury following the trial judge’s directions.
The appellant seeks to characterise the comments by the respondent in closing address as “usurping” the jury’s role. That characterisation is not correct. It is entirely consistent with the jury’s role that in closing address the respondent put to the jury the contentions put forward by the respondent. It is then a matter for the jury whether they accept those contentions or not.
The jury was clearly directed on the burden and standard of proof and the presumption of innocence. The respondent’s comments in the closing address were consistent with those principles and did not undermine the principles.
The matters relied upon in respect of the second aspect of Ground 2 do not establish a miscarriage of justice.
The third issue to be considered is the evidence of the complainant’s stepmother that the appellant says was admitted into evidence without challenge or direction.
It is necessary to consider the actual evidence of the complainant’s stepmother. The evidence was as follows:The complainant’s stepmother was asked about several posts on social media she made under a false name. She was asked in cross-examination whether she had made a particular post, and in her response made one of the statements complained about by the appellant, namely:
“And you also said:
I know it’s a weird thing to be celebrating but in six months he might go to jail and then I can go back to living a vaguely normal life, maybe, we’ll see.
?---Yes, I said that because for the last three years we’ve had to move four times for safety.
No, just stop - - -?---We have - - -
- - - there?--- - - -had - - -
Just stop there. The question was whether you said it?---Yes.”
The answer was stopped, and no further explanation was given. The evidence arose in cross-examination and counsel for the appellant made no objection to the evidence other than seeking to have the witness answer the question asked.
The second part of the evidence of the complainant’s stepmother complained about by the appellant arose in her evidence in chief. The complainant’s stepmother was asked whether she had met the complainant’s mother at all. The complainant’s stepmother’s answer was as follows:
“Witness: I met her very briefly, but there seemed – I – what – happened was that [the appellant] had, sort of convinced me that - - -
Ms Fuller: Well, your Honour, I object.
Witness: - - - [the complainant’s mother] was - - -
Mr McIntyre: I was just asking whether you met the mother. It was a narrow question?---Sorry. Yes, yes.
All right?---Yes, your Honour. Yes sorry.
Certainly?---Briefly.”
The objection to the answer was taken at the time and no further details were given.
Both of these statements also need to be considered in light of the directions given by the trial judge in the summing up. The directions given by the trial judge were sufficient. No particular direction was sought in respect of this evidence, nor was a redirection sought. A specific direction was not necessary when considered in the full context of the trial.
It was a matter for the jury what evidence they accepted or not, and also what weight they gave to the evidence. There was nothing in these responses that could properly be characterised as “improperly inflam[ing] the jury’s emotions”.
No miscarriage of justice has been established in respect of this aspect of Ground 2.
The appellant’s complaint about the respondent mocking the defence arises out of the re-examination of the complainant’s stepmother.
In cross-examination, counsel for the appellant expressly asked the complainant’s stepmother whether she had “planted memories in [the complainant’s] mind” and whether she had done so to bolster her position in relation to the parenting proceedings regarding the complainant’s stepsister. The complainant’s stepmother denied both of these propositions.
In re-examination, counsel for the respondent asked about the proposition that she had “planted memories” and asked whether the complainant’s stepmother had “any talents … as a – mesmerist or anything along those lines”. Counsel for the appellant promptly objected, and the trial judge told the witness not to answer. Counsel for the respondent did not take the question further.
The evidence was objected to at the time and the trial judge in effect ruled on it. While the complainant’s stepmother’s answer of “[n]ot that I’m aware of” was given in parallel to the objection, the appellant does not complain about the answer.
The complaint is about the question and that was promptly and appropriately dealt with at the time.
The appellant also points to the respondent’s closing address raising similar concepts. Counsel for the respondent said in the closing address:
“Now, she’s not a psychological mastermind of some sort to do that. Neither [the complainant’s mother] or [the complainant’s stepmother] would have struck you as particularly complex witnesses, I suggest. That there was some conspiracy, is something I would suggest you would ultimately dismiss.”
The prosecutor did not use words such as “absurd” or “fanciful” in the respondent’s closing address.
Nothing improper in the respondent’s closing address is established.
Further, from the directions given during the trial judge’s summing up, the jury was clearly aware of its task and had appropriate directions to approach the relevant evidence from the trial. No specific direction was required.
Considered in all of the circumstances of the trial, no miscarriage of justice is established in respect of this aspect of Ground 2.
The fifth, and final, issue raised in respect of Ground 2 is the cumulative effect of all of these matters. It is contended that together these matters undermined the trial and give rise to a real risk of a miscarriage of justice.
This contention is not made out. These matters were appropriately dealt with at the time they arose and/or were adequately addressed by the directions given, or comments made, in the summing-up. Matters of what evidence was accepted or not, and the weight to be given to the evidence, was left to the jury with appropriate directions.
On the facts and in all of the circumstances, the appellant has not established a miscarriage of justice in respect of Ground 2.
Ground 3: Evidentiary gaps, disclosure failures and an improper indictment expansion denied procedural fairness.
In respect of Ground 3, the appellant relies on a combined failure of the prosecution and the police to disclose material evidence and investigate “exculpatory leads”, thereby denying procedural fairness. Further, the appellant submits that the trial was “undermined” by the improper and “unnotified” expansion of the indictment timeframes, which also breached the principles of fairness.
The appellant raises three bases to establish Ground 3.
Firstly, the appellant submits that the respondent failed to disclose evidence in respect of emails and screenshots said to have been received by police from the complainant’s stepmother. It is alleged that whilst these documents were referred to in evidence they were never provided to the defence. In these circumstances, the appellant submits that the respondent breached the duty to provide all relevant and exculpatory material. Further, Officer Pavicic was questioned about these documents and gave conflicting answers.
The appellant complains that despite the non-disclosure the jury was in effect permitted to consider the substance of these communications. The non-disclosure of the evidence had the effect of compromising the appellant’s ability to challenge the “timeline, motive, or narrative surrounding the complaint”.
The second basis for Ground 3 is the expansion of the date range for the offending. The appellant contends that the original allegations concerned 2009 to 2011 and the indictment was later expanded to cover 2007 to 2013. Further, this expanded period included times when the appellant did not reside at the relevant address and the appellant had verifiable alibis.
The complaint is that the appellant was not informed of the expanded timeframes “during the investigative or charging stages”. As a consequence, the appellant was denied a fair opportunity to prepare a proper defence or to present alibi or rebuttal evidence for the new period.
Further, as a consequence of the absence of a formal notice or amendment, the appellant was deprived of procedural fairness, and it amounted to a breach of his “fundamental trial rights”.
The third basis for Ground 3 is the failure by the police to investigate exculpatory leads and relevant witnesses. In respect of the complainant’s evidence, the appellant says that various individuals are identified who may “potentially [be] involved or knowledgeable” and none were interviewed.
Further, the complainant’s mother was not reinterviewed despite the updated evidence of the complainant, including alleged statements made by the complainant’s mother.
The appellant submits that steps were not taken to locate and interview other potential witnesses, nor to corroborate or exclude their relevance.
Overall, in respect of Ground 3 the appellant contends that the compound effect of the failures of the respondent and police denied the appellant procedural fairness, the appellant’s ability to conduct a defence was compromised, and this in turn compromised the integrity of the trial resulting in a miscarriage of justice.
Consideration
Again, it is necessary to look at the actual position in respect of each of these issues that are relied upon in respect of Ground 3.
Firstly, in relation to the complaint about disclosure, the complainant’s stepmother gave evidence as follows in cross-examination by counsel for the appellant at trial:
“Well, can I suggest to you that the court website doesn’t have that detail on it about a protected counselling hearing?---I have the screenshots of the particular website. Provided them to the Detective at one point.
All right. Well, I might speak to my learned friend about that. Can I suggest to you that the only way you would’ve got that information is it you discussed it with [the complainant]?---That’s not the case.”
“Did you ever receive any screenshots or printouts of any court dates from [the complainant’s stepmother]?---No.
And in particular, any court dates or information published on the court dates website?---No. I received that yesterday after I spoke with [the complainant’s stepmother].”
“And you advised the learned Crown prosecutor that there had been no communications with [the complainant’s stepmother] where there had been sharing or information about court date from the court website?---That’s correct.
… Did you then speak to [the complainant’s stepmother] about that subsequent to advising the prosecutor about that? --- So I spoke to the prosecutor. I searched my emails. I didn’t have an email. I didn’t remember receiving any such email. So the prosecutor asked me to call [the complainant’s stepmother] and see if she had sent that email to me; if she had evidence of that. So when I spoke to [the complainant’s stepmother] yesterday morning, she said that she had made a mistake and she hadn’t actually sent it to me. So then she forwarded it to me – to my police email yesterday and I forwarded that on to [the] DPP.”
That was the end of the cross-examination of Officer Pavicic.
There is no basis to the appellant’s complaint that there was a failure to disclose material. On the evidence, when it was received by the respondent, it was disclosed.
To the extent that the appellant’s complaint goes further that the evidence and the non-disclosure compromised the appellant’s ability to challenge the complaint, that is also not made out. Both the evidence and the disclosure were in relation to a listing of a related hearing. The issue was whether there had been communication between the complainant and the complainant’s stepmother as to the nature of the hearing. The issue arose during the trial and the appellant had the ability to cross-examine the witnesses in relation to the issue. The issue went to credit and the wider issues of credibility of both the complainant and the complainant’s stepmother were extensively dealt with in addresses and the summing-up.
Whilst the appellant asserts procedural unfairness and the compromise of his ability to conduct a defence, no unfairness or prejudice is identified. Further, no application was made at the trial for a direction, a re-direction, or a mistrial. This is consistent with the disclosure issue not giving rise to any miscarriage of justice.
The second issue in Ground 3 is the alleged expansion of the date range for the offending after the investigation stage and the appellant being denied the opportunity to prepare a proper defence.
The indictment was presented on 13 October 2022 and the trial occurred on 10 June 2024. There was a considerable period of time for the defence to consider alibi or rebuttal evidence. This contention is not made out, and no unfairness or prejudice is established.
The third issue in respect of Ground 3 is that there were failures in respect of the police investigation. The complaint about the complainant’s mother not being reinterviewed goes nowhere. The complainant’s mother was called at the trial and was cross-examined. There could be no compromise in the integrity of the trial in that circumstance.
In respect of other “potential witnesses”, again this is unspecific. There was some evidence of another occasion when the complainant may have been sexually abused by others. However, from what evidence there was, if it occurred, that was separate to the matters being dealt with in this case.
There is no basis identified that supports the conclusion that the appellant’s ability to conduct a defence was compromised. The appellant’s defence was that he did not commit the offences. Speculating about whether someone else offended against the complainant on a different occasion does not further or assist that defence.
The appellant contends that the compound effect of the issues in respect of Ground 3 results in a miscarriage of justice. That proposition is not established when the issues are considered separately and together.
Ground 4: Witness collusion, credibility issues and pervasive prejudicial publicity compromised the trial’s integrity.
In respect of Ground 4, the appellant submits that the trial was compromised by the compounded effect of “witness collusion, credibility issues, and pervasive prejudicial publicity”.
The appellant contends that there was a miscarriage of justice due to:clear evidence of “witness collusion and memory contamination”, including the complainant’s evidence that her memories felt “not real” until others believed her and the trial judge’s failure to provide a warning on this.the highly prejudicial conduct of witnesses, including:vague and evasive answers;credibility issues;inflammatory remarks; andan online smear campaign,
and the trial judge’s failure to intervene or provide directions.
The first aspect of Ground 4 is witness collusion and memory contamination. The appellant relies upon the following matters in support of this contention:In respect of the complainant’s evidence:The complainant’s evidence in cross-examination that she feared her memories were “not real” and this fear only subsided “once [she] went [to the police] and disclosed it and [she] had people there who were believing [her]”. The appellant also refers to the initial statement by the complainant of going to “court” which was corrected to “police” as being consistent with a “significant memory issue”.The complainant’s evidence in chief that she in effect withheld details from the complainant’s stepmother to make her a “good witness”. The appellant submits that this reveals an intention by the complainant to “shape” the testimony of the witness rather than provide an independent memory.Before the complaint was made, the complainant discussed the appellant’s alleged sexual preferences and past behaviour with the complainant’s mother and the complainant’s stepmother. The complainant’s stepmother was the complaint “instigator”.The testimony of the complainant’s mother reveals “suggestive influence”. When the complainant asked if the appellant liked “teeth” during oral sex, the complainant’s mother said, “I am not sure, maybe you’re asking because he told you to do that”.10 The appellant submits this raises potential contamination or shaping of the complainant’s story.The conflicting accounts about the instigation of the complaint to police raises doubts as to the voluntariness and independence of the complaint process. The complainant’s stepmother’s evidence was that a mediator told her to make the complaint. The complainant’s evidence was that the complainant’s stepmother said that the police told her to make the complaint.The spontaneity of the complainant’s complaint was undermined by the complainant’s stepmother instigating the police involvement. This occurred after the complainant’s stepmother had told a mediator and the complainant’s mother about the allegations.The trial judge failed to give a direction to address this risk of contamination and collusion.
Ground 4 also involves witness conduct and credibility issues concerning the evidence of the complainant’s mother and stepmother.
In respect of the evidence of the complainant’s mother, the appellant submits:Her evidence was persistently evasive, with vague answers or her not being able to remember. She also gave qualified answers, such as “yes, if that is in writing, yes”.Her evidence that she would only agree with the defence if “the army records state … [the appellant] was, in fact absent from home” was also evasive.
The appellant ultimately submits that the complainant’s mother displayed a “pattern of avoidance” which hindered cross-examination and resulted in unfairness.
Consideration
It is necessary to consider the actual position in respect of each of these issues that are relied upon in respect of Ground 4.
The evidence of the complainant’s mother and the complainant’s stepmother at trial was relevant to the opportunity for the offending at the Eatons Hill home in the two relevant periods, the complainant’s disclosure to each of them, the complaint to the police which started the police investigation, and more generally to matters that potentially impacted on the complainant’s credit.
Whether the offences were proved beyond reasonable doubt turned on whether the jury accepted the evidence of the complainant and the cross-examination of the respondent’s witnesses. The addresses by counsel and the summing-up largely focused on the inconsistencies in the complainant’s evidence and matters going to credibility and reliability. This is not unusual.
The complainant’s stepmother was cross-examined extensively about these issues. The circumstances of the disclosure by the complainant to the complainant’s stepmother were fully explored and ultimately had to be considered by the jury.
The evidence was that the complainant was staying with the complainant’s stepmother at the time she first spoke of the alleged conduct and was “having a difficult time”. The conversation occurred after the complainant’s stepmother found the complainant crying while watching the complainant’s stepsister sleeping and she asked what was wrong.
At first the complainant did not say much but after a period of 15 to 20 minutes the complainant said that she thought the appellant had sexually assaulted her when she was younger.
This initial conversation was followed by a further conversation that evening, and also a day or so later. During the further conversation, the complainant’s stepmother had probed slightly for more information. This detail was that the appellant had touched her somewhere he should not have touched her.
At this stage the complainant’s stepmother and the appellant had separated and the relationship between them was “very poor”, including a custody dispute over the complainant’s stepsister.
During the conversation, the complainant had said that she was scared that maybe the memories were not real. The complainant’s stepmother also spoke about her own sexual abuse.
A few days after the initial disclosure, the complainant, the complainant’s mother, and the complainant’s stepmother had arranged to meet, and the complainant’s stepmother suggested that one of them should go to the police.
On 21 August 2021, the complainant’s stepmother went to the police station by herself and made a complaint about what she had been told by the complainant.
“… I am not/have not assumed that what [the complainant] has told me is factual. I honestly can’t comprehend you ever doing that to a child, but I’m left in this tricky situation where I have to do everything possible to keep [the complainant’s stepsister] safe.”
“Hopefully this is all temporary. My ideal scenario would be that [the complainant] realises that her memories are confused/distorted after she’s had a few sessions of counselling and that we can go back to you seeing [the complainant’s stepsister], but I’m not in control of this situation. All I can do is base decisions off the information I’ve been given.”
The complainant’s stepmother also gave evidence that the complainant was depressed and disassociating around this time and would disconnect with people and be silent and inside of herself.
The complainant’s stepmother was questioned about whether she had discussed the court proceeding with the complainant and the complainant’s stepmother’s evidence was that other than procedural matters she had not discussed the court proceedings.
The issue of posting on social media under the fake account name was also addressed. This included that she had found out about a protected counselling hearing in the District Court and included a post in relation to the trial dates. The complainant’s stepmother’s evidence was that:
“… in my mind for whatever reason I thought because I was using a fake name that there was no way of being able to connect it to the – the real case.”
“I know it’s a weird thing to be celebrating but in six months he might go to jail and then I can go back to living a vaguely normal life, maybe, we’ll see.”
“Yes, I said that because for the last three years we’ve had to move four times for safety.”
The witness was stopped from a further explanation but accepted that she had said what was in the post.
Then, in cross-examination, it was expressly put to the complainant’s stepmother as follows:
“... I’m going to suggest to you that you planted memories in [the complainant’s] mind? --- Absolutely not.
And that you did so because you were trying to bolster your position in relation to parenting proceedings regarding [the complainant’s stepsister]? --- No.
That you were the one that instigated a police investigation; against [the complainant’s] intentions? --- No.”
The complainant’s mother’s evidence was that the complainant had disclosed to her that the appellant had “done things to her when she was younger” and “she was having memories of him doing things to her”.
The complainant had told her that:
“… she remembered being on a bed and that there was a blanket box at the end of the bed and that [the appellant] shut the door and that she was playing with herself and that he was above her on top of her.”
The complainant’s mother also gave evidence that the complainant, after the initial disclosure, had asked her whether the appellant “liked teeth involved in oral sex”.
These disclosures occurred before the complainant spoke with the police. The complainant’s mother took the complainant to the police on the Saturday afternoon after these disclosures.
The complainant’s mother also gave evidence that the complainant had stayed with a friend and then the complainant’s stepmother before returning to stay with the complainant’s mother. Shortly after that, the complainant’s stepmother had come over to the house and had a discussion with the complainant. This was followed by a discussion where the complainant’s stepmother indicated that the complainant had disclosed that the appellant had sexually abused the complainant when she was younger. The complainant’s stepmother said that she was going to the police station to report it.
The complainant’s mother was then cross-examined about when her initial conversation with the complainant had occurred and whether the complainant’s stepmother had been present. She was further questioned about how long after she had spoken with the complainant’s stepmother she had had the discussion with the complainant. The complainant’s mother said she could not exactly remember when.
She was then questioned about whether it was possible that she was in the car when this conversation took place. The complainant’s mother’s answer was:
“I’m – sorry. It’s just so hard to – so – so many memories. So many times. Both children.”
The witness was then asked what she meant by “both children”. Her response was “Just – so – just both – both of my children”. The trial judge then asked a question focusing the witness on whether she could recall the conversation occurring in the car. The witness ultimately said she could not recall. Counsel for the appellant then moved on from that line of questioning.
After a further line of questioning the trial judge raised an issue in the absence of the jury and the complainant’s mother in respect of a potential misunderstanding of the use of “children”. The witness returned and she was questioned in the absence of the jury. Both counsel agreed with the trial judge’s proposed direction to the jury in respect of this aspect of the evidence.
The trial judge directed the jury as follows:
“… The third thing I wanted to direct you about was some exchanges between Ms Fuller and [the complainant’s mother] about a particular aspect of the cross-examination which led me to ask you to retire for a short time. After an answer by [the complainant’s mother] which Ms Fuller, perhaps understandably, took as the witness trying to suggest that [the appellant] had done something else wrong – namely, possibly relating to their son – that kind of developed a little bit and that’s why I asked you to leave us, so we could sort it out.
The end result of all of that boils down to this: the witness and Ms Fuller were really at cross-purposes. The witness apparently meant something quite different. She wasn’t suggesting that [the appellant] had committed any sexual offences against their son. And she doesn’t suggest that. What she was saying is that in the context of being asked to remember things about these events during her cross-examination, she had had a lot – a lot to think about in relation to both of her children. And that’s really all that she would say.
There is just no suggestion in this trial or otherwise of any sexual offending by [the appellant] against the son. What this case is about is these charges and nothing else.”
In cross-examination, the complainant’s mother accepted that she had told the police the following:“[The complainant] told me the memory she had where she was on a bed and there was a blanket box at the bottom. She remembered he had shut the door and that she was touching herself, and that he was above her, on top of her. That’s all she said.”“She asked me about a bath at the house, and I said that there was.”“She then asked me if [the appellant] liked teeth involved with oral sex. I just stared at her for a moment in disbelief at that question. I asked her why, and if she had another memory, and she said, ‘Yes.’ I said to her, ‘Not that I can remember’.”“I said something to the effect of the effect of, ‘If you’re having a memory about it, maybe he was asking you not to use your teeth.’ We then stopped talking about it at that point as I didn’t want to fill her memory in.”
In cross-examination it was put to the complainant’s mother that when talking about the sexual abuse allegations the complainant had said at some point that the memories might not be real. The complainant’s mother agreed that the complainant did at one time mention it and did question herself.
In respect of the instigation of the complaint, the complainant’s stepmother’s evidence was that, following the meeting with the complainant and the complainant’s mother outlined at [200], the complainant’s stepmother suggested that one of them should go to the police to make a complaint. Further, her evidence was that this occurred after she had “been advised by a mediator that [she] was legally required to make a complaint”.
Further, the complainant’s stepmother gave evidence that she went to the Petrie Police Station by herself on 21 August 2021 and made a complaint. Her evidence was that later that evening the three of them (the complainant, the complainant’s mother, and the complainant’s stepmother) went to the Ferny Grove Police Station.
The complainant’s evidence was that:
“[The complainant’s stepmother] had gone to the police, I believe, or, like, yeah, I think she just talked to a police officer and asked for advice, and she was told that the laws had changed around disclosing child sexual abuse, and so she had – she was legally obliged to come in and make a statement, I think. And at that point, we talked about telling my mum because we realised that it would have to be a longer process.”
Further, the complainant’s evidence was that, very shortly after making the initial disclosure to the complainant’s stepmother, the complainant’s stepmother told the complainant that she had gone to the police.
The trial judge gave the direction outlined at [95] above that the jury needed to carefully scrutinise the complainant’s evidence. In the summing-up, the trial judge also addressed the motive raised by the defence for the complainant to lie given the custody mediation that was coming up. The trial judge directed that the complainant had rejected the matter in cross-examination, but it was a matter for the jury.
Further, the trial judge directed that the facts were a matter for the jury and commented as set out at [94] above.
The trial judge also dealt specifically with the preliminary complaints to the complainant’s stepmother and the complainant’s mother. The trial judge briefly summarised the evidence of the complaints and directed as follows:
“That evidence of those preliminary complaints may only be used as it relates to the complainant’s credibility. So consistency between those accounts of the complaints made to [the complainant’s stepmother and the complainant’s mother], versus [the complainant’s] evidence before you, is something you may take into account as possibly enhancing the likelihood that her evidence is true.
However, you cannot regard the things said in those out of court statements by the complainant as proof of what actually happened. In other words, evidence of what was said on those occasions may, depending on the view you take of it, bolster the complainant’s credit because of consistency, but it does not independently prove anything. Likewise, any inconsistencies between the accounts of those witnesses, [the complainant’s] complaints and [the complainant’s] evidence in the trial, may cause you to have doubts about her credibility or reliability. Whether inconsistencies or consistencies impact on the credibility or reliability of the complainant is a matter for you.”
“You should only, therefore, act on her evidence if, after considering it, with that warning in mind and all of the other evidence, you are convinced of its truth and accuracy.”
The trial judge also commented on the evidence about the inconsistencies in the complainant not mentioning all of the offending conduct in her statement to police and not mentioning it to some of the mental health professionals she was talking to.
The evidence of the complainant’s stepmother and the complainant’s mother was also addressed by the trial judge in the context of summarising the rival contentions. Other than the more general directions, including in respect of the credibility and reliability of witnesses, there was no specific direction about the evidence of the complainant’s stepmother or the complainant’s mother.
The trial judge also made two other directions of importance in respect of the jury’s task, which is relevant to consider under this issue.
Firstly, the trial judge directed that where the appellant had given evidence:
“ … it is not a question of you making simply a choice between the evidence of the complainant and the evidence of the [appellant]. The proper approach, rather, is to understand that the prosecution case depends upon you, the jury, accepting that the evidence of the complainant was true and accurate beyond reasonable doubt despite the sworn denials by the [appellant].
So you do not have to believe the defendant is telling the truth before he is entitled to be found not guilty. Whereas here there is defence evidence, usually one of three possible results follow logically. Firstly, you may think that the defence evidence is credible and reliable and that it provides a satisfying answer to the prosecution case. If so, obviously enough, your verdicts would be not guilty. Or you may think that although the defence evidence was not convincing, it still leaves you in a state of reasonable doubt about what the true position was. If so, again, your verdicts would be not guilty.
Or, thirdly, you might think the defence evidence should simply not be accepted. However, if that is your view, be careful not to jump from that view to an automatic conclusion of guilt. If you find the defence evidence unconvincing, set it to one side and go back to the rest of the evidence, asking yourself whether, on a consideration of such evidence as you do accept, you are satisfied beyond reasonable doubt that the prosecution has proven each of the elements of the offence in question.”
After going through the elements on each count on the Indictment, the trial judge directed that the jury would return separate verdicts on each charge. In this regard, the jury were directed that the evidence in respect of the separate offences was different, and their verdicts need not be the same.
The next part of the directions by the trial judge is also of importance in relation to the matters raised on appeal. The trial judge directed that:
“If you have a reasonable doubt concerning the truthfulness or reliability of the complainant in relation to one of the counts, whether by reference to her demeanour or for any other reasons, that must be taken into account in assessing the truthfulness or reliability of her evidence generally. Your general assessment of [the complainant] as a witness will be relevant to all counts, but you will have to consider her evidence in respect of each count when considering it.
Now, it might occur that in respect of one of the counts, for some reason, you are not sufficiently confident of her evidence to convict in respect of that charge. A situation may arise where in relation to a particular count, you get to the point where although you are inclined to think she is probably right, you have some reasonable doubt about an element, or elements of that particular offence. Now, if that occurs, of course you find the [appellant] not guilty of that count.
That does not necessarily mean you cannot convict of the other counts. You have to consider why you have some reasonable doubt about that part of her evidence and consider whether it affects the way you assess the rest of her evidence. That is, whether your doubt about that aspect of her evidence causes you also to have a reasonable doubt about the part of her evidence relating to the other counts or charges.”
“Matters which will concern you are the credibility of the witnesses and the reliability of their evidence. Credibility concerns honesty. Reliability may be different. A witness may be honest enough, but have a poor memory, or otherwise simply be mistaken. It is for you to decide whether you accept the whole of what a witness says or only part of it, or indeed none of it. You may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and correctly recalls the facts about which he or she has given evidence.
Many factors may be considered in deciding what evidence you do accept … ultimately it is a matter for you ... you have seen how the witnesses presented in the witness box when answering questions, and … in the remote witness room, …sometimes referred to … as the witness’s demeanour.
Bear in mind in assessing the evidence in that way that many witnesses are not used to giving evidence and may find the different environment of the court somewhat distracting. Consider also … the likelihood of the witness’ account … Consider whether the witness seemed to have a good memory.”
“Clarification of voting: whether it’s majority or unanimous.”
There is nothing inherent in the question which supports the inference contended for by the appellant, namely that the question arises from, or is some how related to, the evidence of the complainant’s mother.
At that stage of the trial, the trial judge dealt with the second question succinctly:
“And as I’ll remind you in the summing up, it’s unanimous. Has to be unanimous.”
“In respect of each [of] the charges, you must reach a unanimous verdict – that is, one on which you all agree whether guilty or not guilty.”
Many of the matters complained about by the appellant were not central to the allegations in the counts on the Indictment. They remained relevant to the credibility and reliability of the complainant. The matters identified were fully explored in cross-examination and addressed in closing addresses. The trial judge made appropriate directions as to the factors that the jury could consider in evaluating the evidence, including matters going to reliability and credibility. In all of the circumstances, no further directions were required from the trial judge.
Further, on an analysis of the evidence and directions given in respect of each of the issues raised by the appellant, no miscarriage of justice has been established in respect of Ground 4. Accordingly, Ground 4 must be dismissed.
Ground 5: Factual inconsistencies, the improper admission of hearsay and prejudicial witness conduct rendered the verdict unsafe.
The appellant relies on a number of matters in respect of the evidence in support of Ground 5.
In respect of the complainant’s credibility, the appellant submits there were demonstrable inaccuracies regarding key facts which significantly undermine the reliability of her uncorroborated evidence. The complainant’s evidence was that the appellant had dark coarse pubic hair and was circumcised. The appellant’s evidence was that he is not circumcised and routinely shaved or trimmed his pubic hair during military service due to requirements for deployments or exercises. The appellant contends that this discrepancy undermines the reliability of the complainant’s evidence. It also contradicts the claimed “familiarity” of the complainant with the appellant.
Another factual discrepancy in the complainant’s evidence which the appellant points to is her evidence that a bedroom door was closed, when the objective evidence is that there was no door. The complainant’s evidence of a “wooden door” was contrary to the floorplan and photographs tendered at the trial. When this discrepancy was put to her, the complainant only said “Yep”. The appellant contends that this discrepancy undermines the complainant’s credibility and recollection.
On Count 4, on which the jury acquitted the appellant, the appellant points to the discrepancies in the evidence as to the camera by both the complainant and the complainant’s mother. The appellant submits that the credibility of the witnesses was impacted by this evidence and suggested “confabulation or memory distortion” by both witnesses.
In respect of the second basis of Ground 5, the appellant points to evidence from other witnesses which contained hearsay and prejudicial statements. In particular:The initial complaint was instigated by the appellant’s ex-partner, the complainant’s stepmother, and was not a direct disclosure by the complainant. The appellant contends that the complainant’s stepmother had a motive to fabricate the complaint given the custody dispute.The evidence of the complainant’s mother about the disclosure by the complainant was vague and centred on one question from the complainant about oral sex. This question was insufficient to support the allegations. The evidence of the complainant’s mother also had issues regarding Count 4 and whether the camera had existed. This undermined the complainant’s and the complainant’s mother’s credibility as witnesses, and also the original complaint.
The third basis of Ground 5 is that there was prejudicial conduct by the respondent and the complainant’s mother during the trial. This included:The conduct of the complainant’s mother during cross-examination, which was highly prejudicial and impeded the ability to test her evidence in cross-examination. This included vague and non-responsive answers and improper insinuations. While the trial judge directed the jury to disregard her evidence, the prejudicial effect could not be fully cured.Soon after the jury gave a note to the trial judge asking about a majority verdict. The appellant suggests that this supports confusion and potential influence by the evidence of the complainant’s mother.
Consideration
The appellant points to the inconsistencies in the complainant’s evidence in respect of three matters. Two of these, the wooden door and the camera, are relevant to Count 4. They may also be relevant to the complainant’s overall credibility and reliability.
The other inconsistencies relate to the appellant’s penis and pubic hair. This may be relevant to the complainant’s overall credibility and reliability.
The inconsistencies in the complainant’s evidence were matters that were identified and explored in cross-examination and also dealt with in closing addresses. The trial judge’s summing up also dealt with this issue and the jury’s task in evaluating the evidence.
Appropriate directions were given dealing with matters such as:It is on the whole of the evidence that the jury must be satisfied beyond a reasonable doubt.It is not a question of deciding between the evidence of the complainant and the evidence of the accused.As the appellant gave evidence, his evidence is added to the other prosecution evidence. The burden stays on the prosecution to prove the offences. The approach therefore is whether the jury accepts the evidence of the complainant as true and accurate beyond a reasonable doubt despite the appellant’s sworn denial.
Further, the trial judge made the directions set out at [221] and [222].
The evidence in respect of the wooden chair and the camera were both relevant to Count 4. Even though the appellant has been acquitted of that Count, the evidence was also relevant to the reliability and credibility of the complainant more generally. These were matters for the jury.
The evidence of the complainant was inaccurate in some respect as to the layout of the house and the existence of a door. The complainant says that there was a wooden chair in the bedroom. This was contentious. The complainant also described a flat, black camera. This was also contentious. Further, the complainant’s account of the acts constituting Count 4 were not given to police in September 2021 and the memories had come back to the complainant by July 2022. Consistent with the directions given by the trial judge, the jury had to be satisfied on the evidence beyond reasonable doubt of the elements of Count 4. In respect of Count 4, there were additional bases to found reasonable doubt in respect of the particulars of the Count, compared to the other Counts on the Indictment.
The complainant was also questioned about the appellant’s physical appearance relevant to Count 5. The complainant’s evidence in chief and in cross-examination was that, from what she remembers, the appellant was circumcised and his pubic hair was dark and unshaved. This evidence was contested by the defence and the appellant gave evidence that he was uncircumcised and shaved his pubic hair at the time.
This evidence was relevant to the reliability and credibility of the witnesses, and this was a matter for the jury. This was fully explored in cross-examination and the jury was directed generally on the factors that the jury may choose to consider in respect of reliability, credibility and inconsistencies.
Ground 6: Inconsistent verdicts and a failure to apply the standard of proof beyond reasonable doubt led to an irrational outcome.
The appellant submits the jury’s decision to acquit on one charge and convict on others, when all counts rested on the same uncorroborated testimony, is logically inconsistent. Further, the appellant contends that there was no rational basis to distinguish between the counts and consequently the verdicts are irreconcilable.
Consequently, the appellant contends that the verdicts demonstrate an illogical and/or irrational application of the standard of proof and cannot be considered safe and satisfactory.
The appellant relies upon the comments of the High Court in MacKenzie v The Queen13 at 366.14
In response the respondent relies on the statement by the Court of Appeal in R v CCX15 where Kelly J16 considered the comments of the High Court in MacKenzie v The Queen17 and M v The Queen18 in relation to inconsistent verdicts.
The observations of Kelly J are particularly relevant:
“[53] Where alleged inconsistency is said to arise with jury verdicts on different counts, the court must apply a test based upon logic and reasonableness, which respects the function of the jury. It is not the role of an appellate court to substitute its opinion of the facts for one which was open to the jury.
[54] In Mackenzie v The Queen, the joint judgment said:
‘ …[I]f there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted.’
[55] The respect which an appellate court must afford the function of the jury is emphasised in the following passage in M v The Queen:
‘… the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.’
[56] The appellant bore the onus of establishing that the verdicts of acquittal and conviction were an unacceptable affront to logic and common sense and strongly suggestive of, relevantly, the jury having compromised its duty, having been confused or misunderstanding its function.”
The respondent submits that, given the conflicting evidence about two aspects of the complainant’s evidence,19 there is a logical and reasonable explanation for the jury’s acquittal of the appellant on Count 4, while convicting on the other counts.
Further, the respondent contends that the acquittal on Count 4 resulted from the jury following the trial judge’s direction. That is, if the jury was left with any doubt as to whether an individual count was proved beyond a reasonable doubt, then the appellant was to get the benefit of the doubt and they must acquit on that count.
In these circumstances, the respondent submits that Ground 6 should be dismissed.
Consideration
The extract from the reasons of Kelly J in R v CCX20 helpfully summarises the key principles to be considered in respect of Ground 6. An analysis of the evidence establishes that the verdicts of acquittal on Count 4 and convictions on Counts 1, 2, 3 and 5 were not an unacceptable affront to logic and common sense. On the evidence, there is a logical and reasonable basis for the acquittal on Count 4 due to the two conflicting issues on the evidence that were relevant to that offence.
Further, it is consistent with the directions that were given by the trial judge, including that the jury must reach a verdict only on the evidence, that each of the offences must be proved beyond a reasonable doubt and if the jury are left with a reasonable doubt in respect of an element of the offence, they must acquit on that offence. The jury were directed that it was a matter for them as to whether they accepted or rejected the evidence of a witness in whole or in part, including matters of credibility and reliability.
Further, as discussed above, the trial judge directed that where a defendant gives evidence such as in the current case, the proper approach is that the prosecution’s case depends on whether the jury accepted the evidence of the complainant as true and accurate beyond a reasonable doubt despite the sworn denials by the appellant. It is not a simple choice between the evidence of the complainant and the appellant.
The trial judge also directed that the jury needed to consider the evidence and be satisfied beyond a reasonable doubt of each of the elements of each count. In undertaking this exercise, there is a logical and rational basis for the jury to acquit on Count 4 while convicting the appellant on Counts 1, 2, 3 and 5.
There is no basis to conclude that the jury compromised its duty or misunderstood its function. The acquittal on Count 4 is consistent with the jury fulfilling its function and duty.
In all of the circumstances, the appellant has not established Ground 6.
Ground 7: A premature and coercive Black direction undermined genuine jury deliberation.
The appellant raises a number of contentions in respect of Ground 7, including that the delivery of a Black direction was premature, being delivered after only five hours of deliberations. The appellant also contends that it is likely the direction had a “coercive effect” as the jury returned guilty verdicts just 43 minutes later.
The appellant contends that a miscarriage of justice resulted as the direction undermined the requirement for true unanimity and compromised the voluntariness of the verdict.
It appears to be primarily the short interval between the Black direction being given at approximately 3.46 pm and the guilty verdicts at 4.29 pm, being 43 minutes, that the appellant points to as raising serious concerns that the direction had the effect of pressuring the jury into a premature consensus, rather than allowing genuine and independent deliberation.
The appellant submits that the coercive nature of the “premature direction” constitutes a miscarriage of justice and renders the resulting verdicts unsafe.
In response, the respondent contends that this ground must be dismissed as there is no basis to conclude that any juror was improperly pressured by the direction, or otherwise to conclude that the direction caused a miscarriage of justice.
In support of this conclusion, the respondent points to the jury’s request for further directions from the trial judge, with the note indicating they were “unable to achieve a unanimous vote”. Further, counsel acting for the appellant agreed with the trial judge that it was appropriate for the jury to be given a Black direction. There was no objection, nor an application for a redirection.
Further, the respondent submits that, having regard to the length of deliberations and the short nature of the trial, it is unremarkable that a Black direction was given. In fact, it is submitted that it was consistent with the trial judge’s duty.
The High Court’s comments in Black v The Queen recognise that jurors who are deadlocked may change their opinions and reach agreement through “[c]alm and objective discussion of the evidence”.21 By giving the Black direction there was no pressure – or any undue pressure – put on the jury. In fact, they were told they could take the time needed and return the next day. The approach was unexceptional.
The respondent also submits that the jury note does not indicate whether the impasse was on one or all counts. Also, appropriately and in accordance with the trial judge’s direction, the jury did not disclose voting numbers. In these circumstances, there is no basis to infer an irrational compromise from the timing of the verdicts. Rather, it suggests that the jury followed the direction and, after further discussion, arrived at unanimity on all counts, including an acquittal on Count 4.
Consideration
“We are not able to achieve a unanimous vote. What are the next steps?”
As the note was received approximately four and a half hours into the deliberations, the decision to give a direction consistent with the High Court’s reasoning in Black v The Queen was entirely the correct approach in the circumstances. There was no basis to discharge the jury, nor was it appropriate to consider a majority verdict at that stage.
The trial judge also dealt with the timing that day, and also that more directions could be given at a later stage if necessary. Again, this was also appropriate. Bringing the jury back at 4.30 pm that afternoon on the basis they would be let to go home at that time and return the next day to continue deliberations was also unexceptional and consistent with ordinary practice.
The jury can be taken to have followed the direction as they continued with their deliberations and approximately 40 minutes later indicated they had reached a verdict. There is no evidence that the jury, or any juror, felt pressured by the trial judge in encouraging the jury to take further time to consider and discuss the issues, and to ask for further assistance if needed.
In all of these circumstances, Ground 7 is not established and must be dismissed.
Ground 1: The verdict is unsafe and unsatisfactory in light of inconsistent, uncorroborated and unreliable evidence.
Returning to consider Ground 1, that the guilty verdicts are unsafe and unsatisfactory. This is an overarching submission and the appellant’s other grounds are also relied upon in respect of this ground. To the extent that matters are raised in the grounds of appeal previously dealt with, the contentions and evidence are not repeated in respect of Ground 1 but are considered as part of this ground of appeal.
The appellant contends that the guilty verdicts rest on the “uncorroborated and unreliable” testimony of the complainant. The testimony requires rigorous scrutiny in accordance with M v The Queen,22 particularly given the significant delay which impairs the ability to challenge the evidence.23
The appellant also submits that the complainant’s credibility was undermined by numerous factual inconsistencies and clear errors. As the complainant’s credibility and evidence is central, the appellant submits that an independent review of the evidence supports a finding that the verdicts are unsafe.
The respondent ultimately submits that Ground 1 is not made out as undertaking an independent assessment of the evidence confirms that it was open to the jury, properly instructed, to be satisfied of the appellant’s guilt beyond a reasonable doubt on Counts 1, 2, 3 and 5.
In respect of the appellant’s submissions regarding the jury’s reliance in this case on the uncorroborated evidence of the complainant where the appellant swore denials, the respondent submits that this is unremarkable. The respondent submits that a review of the evidence establishes that the complainant gave clear, consistent evidence as to her recollection of the offending. Further, the jury was in the best position to assess the complainant’s credibility and reliability.
It is also contended by the respondent that it is not correct to describe the complainant’s recollections as being “recovered memories”. Rather:In respect of Count 3, the complainant had always remembered the relevant acts but did not appreciate them as being sexual until more recently.In respect of the other counts, her memory was first prompted by reading an article about male sexual abuse.She did recall further offending between her first statement to police and her second statement to police.
The respondent acknowledges that the complainant’s evidence was contradicted in respect of the layout of the residence and there being no door on the bedroom, but the respondent submits that this did not undermine her consistency regarding her recollection of the offending. Further, it did not suggest the offending could not have occurred in the manner described.
Consideration
The jury were tasked with assessing, and were in the best position to assess, the appellant’s credibility as to whether the appellant’s evidence caused the jury to have doubt.
In considering this ground of appeal, it is uncontentious that the determination of a ground of appeal that a jury verdict is unreasonable and not supported by the evidence requires the Court to independently assess the whole of the evidence. The Appeal Court is to determine whether, on a consideration of the evidence as a whole, it was open to the jury to be satisfied of the appellant’s guilt of the offence, beyond a reasonable doubt.24
In undertaking this exercise, the Appeal Court is to accord due regard to the role of the jury.25 However, the verdict will be considered unreasonable if there are inconsistencies, discrepancies, inadequacies, or other evidence which, even allowing for the advantages of the jury, are of such a nature that a reasonable doubt ought to have been entertained.26
The appellant’s contention is ultimately that he should not have been convicted on the testimony of the complainant where the credibility and reliability of the complainant’s evidence was called into question by other evidence at the trial.
The question for the jury in respect of each of Counts 1, 2, 3 and 5 was whether the respondent had established beyond a reasonable doubt each of the necessary elements of the offences. In respect of the elements of the offences, the evidence was quite brief.
In respect of the three counts of rape (Counts 1, 2 and 5), the first element is penetration of the complainant by the appellant. In this case, respectively that was penetration of the complainant’s vulva by penetration of her labia with the appellant’s finger or fingers; penetrating the complainant’s anus with the appellant’s finger; and penetrating the complainant’s mouth with the appellant’s penis.
The second element, being the absence of consent, did not arise as the complainant was deemed not capable of giving consent due to her age. This was not in issue.
The central issue was whether the acts of penetration were proved beyond a reasonable doubt. That in turn depended on whether the complainant’s evidence established the acts of penetration beyond a reasonable doubt.
In respect of Count 3, the offence of indecent dealing with the complainant involves different elements but similarly turns on whether the complainant’s evidence establishes the offence beyond a reasonable doubt.
Application for leave to adduce further evidence
The appellant filed both proposed fresh evidence and proposed new evidence (further evidence). Fresh evidence is evidence which either did not exist at the time of the trial or which could not, with reasonable diligence, have been discovered at the time of the trial.28 New evidence is evidence which was available at the trial, or which could with reasonable diligence have been discovered at the time of the trial.29
The appellant deposes that the further evidence largely became available to him after his conviction, primarily through domestic violence proceedings in the Magistrates Court.
The proposed fresh evidence includes:an application by the appellant for a protection order dated 15 April 2025, naming the complainant’s stepmother as the respondent;an affidavit of the appellant sworn 13 May 2025 and filed 16 May 2025 in respect of a cross-application in the domestic violence proceedings;a submission of the complainant’s stepmother filed 1 October 2025;an affidavit of the complainant’s stepmother affirmed 30 October 2025;an unsworn affidavit of the appellant filed 6 November 2025 exhibiting various documents including messages between the appellant and the complainant’s stepmother; andan affidavit of the appellant affirmed 27 November 2025.
These documents, including the text of the affidavits, did not exist prior to the appellant’s trial. However, some of the messages exhibited to the affidavits were in existence prior to the trial, although not as an exhibit to the affidavit. The appellant was the sender or recipient of the messages and so was aware of them about the time they were sent or received. He says he did not realise the potential significance of some of these messages until after the trial.
The proposed new evidence includes:a temporary protection order dated 29 April 2022 naming the complainant’s stepmother as the aggrieved and the appellant as the respondent;an application for a protection order dated 29 April 2022 including a statement of the complainant's stepmother;a copy of the Queensland Police brief of evidence in relation to the Magistrates Court proceedings, including an affidavit of the complainant's stepmother dated 5 May 2023; andan affidavit by the appellant dated 29 June 2023, exhibiting various documents including text messages between the appellant and the complainant’s stepmother.
According to the appellant, on 11 November 2025, the Magistrates Court reserved a decision in respect of the domestic violence proceedings. The appellant expects the decision to be delivered on 17 December 2025.
The appellant submits that the further evidence demonstrates “a sustained pattern of fabrication, coaching, collusion, and deliberate narrative construction” by the complainant’s stepmother. On this basis, the appellant submits the further evidence is relevant to the credibility of the complainant’s stepmother, who was a witness at the trial.
“[37] Where an appellant seeks to present evidence which was not tendered at the trial, there is an important distinction between fresh evidence and new evidence. Fresh evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered. New evidence is further evidence which is not fresh evidence…
[38] Where the further evidence, be it fresh or new evidence, would have had the effect of demonstrating the accused’s innocence or at least precluding a finding of guilt, then there will be a demonstrated miscarriage of justice which requires the conviction to be set aside and an acquittal to be substituted for it.
[39] It is where the further evidence would not have had that effect the distinction between fresh and new evidence might become relevant. If it is fresh evidence, and the appellate court considered that there is a significant possibility that a jury, acting reasonably, would have acquitted the appellant if the fresh evidence had been before it at the trial, a miscarriage of justice will be demonstrated, requiring the conviction to be set aside and a re-trial to be ordered.”
His Honour recognised that there may be cases where the absence at the trial of evidence which is “not fresh” evidence may result in a miscarriage of justice requiring a re-trial.31
As the appellant accepts, the further evidence could only arguably be relevant to the credibility of the complainant’s stepmother. That was in issue at the trial. The complainant’s stepmother was extensively cross-examined, including about matters relevant to the complainant’s initial disclosure, the complaint to the police and whether she had “planted memories”. The complainant was also cross-examined about these issues. The issue of the complainant’s stepmother’s postings on social media and disclosure of documents to the police was fully explored in cross-examination. These issues were the subject of closing addresses and the summing-up, to the extent necessary.
The appellant raised no separate ground of appeal in respect of the further evidence. The further evidence, if admitted, could not alter the above conclusions in respect of the grounds of appeal.
The appellant seeks to use the further evidence as an additional challenge to the credibility of the complainant’s stepmother. The evidence must be cogent, plausible and relevant, and it must also be of such a character that, if considered in combination with the evidence at the trial, it would have the result of affecting the minds of reasonable persons.32 The further evidence here does not meet that standard. By its nature, the further evidence, if added to the evidence at the trial, would not show there had been a miscarriage.33
The current domestic violence proceedings in the Magistrates Court, and whatever the potential outcomes, are not relevant to the appellant’s trial held in June 2024. Any conclusion a learned Magistrate might reach would not be determinative of whether it was a fair trial.
The further evidence is not directly probative of the elements of any of Counts 1, 2, 3 and 5. It is not relevant, nor cogent, to the ultimate issues as to whether the elements of the offences were established beyond a reasonable doubt.
In the circumstances:The further evidence, being both the new evidence and the fresh evidence, considered with the evidence led at trial does not raise such a doubt about the guilt of the appellant that the verdicts cannot stand.To the extent that the further evidence is fresh evidence, there is not a significant possibility that a jury, acting reasonably, would have acquitted the appellant if the fresh evidence had been before it at the trial.To the extent that the further evidence is new evidence, there is no basis to conclude that the Court should receive the new evidence to avoid a miscarriage of justice.
Orders
Leave to adduce the fresh and new evidence is refused.
The appeal against conviction is dismissed.
AB 440 – 441. ↩
AB 60; T 2-3 L 5. ↩
R v BCG [2012] QCA 167. ↩
[54.3]. ↩
AB 61; T 2-4 L 20 – 35. ↩
Ground 7 in respect of the failure to give a Black direction is not in this category as it is does not involve a consideration of the evidence at the trial. ↩
The appellant relies on two authorities in support of this proposition. Both appear to be “hallucinations” as they are not correct citations, and cases by the case names used are unable to be located. A number of authorities referenced by the appellant are in a similar category. However, this contention is ultimately not supported by any identified authority, in contrast to other contentions where this arises there is at least one authority that remains (even if it does not wholly support the contention made). This was pointed out to the appellant at the hearing. The appellant was unable to satisfactorily explain the source of the authorities relied upon on this point, or the other affected authorities. ↩
T 1-9 L 1 – 6. ↩
T 1-2 L 28 – 34. ↩
The appellant presents this as a quote of the evidence in his submissions. This is not accurate. The statement that was put to the complainant and the complainant’s mother from the statement of the complainant’s mother to the police was: “If you’re having a memory about it, maybe he was asking you not to use your teeth”. ↩
R
HDC [2025] QCA 262
(1984) 181 CLR 487
(1996) 190 CLR 348
(2025) 281 CLR 137
(1994) 181 CLR 487
(1993) 179 CLR 44
(1989) 168 CLR 79
(2022) 274 CLR 651
(2020) 268 CLR 123
(1974) 131 CLR 510
(1979) 142 CLR 659
(2003) 28 WAR 1
(1933) 49 CLR 429
Leave to adduce the fresh and new evidence is refused. The appeal against conviction is dismissed.
There were a number of features of the evidence given by or about the complainant which had the potential to bear upon the reliability of her evidence. These are all set out in the reasons of Williams J and I will summarise only a few.
Save in respect of one of the counts, there was a long period during which the complainant accepted that she could not recall the offending conduct.
Her recollection of the offending conduct emerged over time.
She was mistaken as to the existence of the bedroom door which she recalled the appellant shut in committing one of the counts charged.
During the period when her recollection was reviving, she was suffering from abnormal mental health and herself was reported to have questioned whether her recollections may not have been accurate.
There was reason to question her recollection of the existence of the specific camera the subject of count 4, whether the appellant was circumcised, whether he had shaved in his groin area and other matters of detail.
She was very young at the time of the conduct charged.
All of these matters were the subject of examination at the trial and, ultimately, they were denied by the appellant and as set out by Williams J. These facts and their significance were dealt with properly in the directions given by the primary judge to the jury. Despite these matters, in respect of the four charges for which the appellant was convicted, the jury can be taken to have been satisfied beyond reasonable doubt as to his guilt in respect of the elements of the various charges (as summarised in the reasons of Williams J). This could only have occurred by the acceptance of the complainant’s evidence over the denials of the appellant, notwithstanding the matters which might have borne upon her credibility.
The function of the jury is to make such determination after examination of the evidence. Our judicial system in relation to criminal trials requires that the jurors, and they alone, determine the facts in the case and the guilt or otherwise of the accused. Taking full account of their role, and the advantages which they enjoy, in my view it cannot be concluded that it was not open to the jury on the totality of the evidence to have found beyond reasonable doubt the appellant guilty of the four counts in respect of which he was convicted.
For those reasons I agree the appeal should be dismissed. I also agree with her Honour’s reasons for refusing the appellant’s application for leave to adduce additional evidence.
WILLIAMS J: The appellant appeals against his conviction, following a jury trial in the District Court of Queensland at Brisbane in June 2024, of three counts of rape and one count of indecent treatment (under 12) (lineal descendant).
The appellant is self-represented. The notice of appeal raised a single ground of appeal that the verdict was unsafe and unsatisfactory. In his written submissions the appellant raised seven grounds of appeal, including the original ground of appeal.
The respondent did not oppose leave being granted for the appellant to amend the grounds of appeal, and at the hearing on 9 September 2025 leave was granted to the appellant to amend the grounds of appeal to those identified in the appellant’s written submissions.
The appellant contends that the conviction should be set aside and either an acquittal entered or a new trial ordered.
The respondent contends that the appeal against conviction should be dismissed on the basis that, in respect of each of the grounds of appeal raised by the appellant, there has been no unfairness or prejudice to the appellant in the conduct of the trial, nor any miscarriage of justice.
After the hearing of the appeal, the appellant applied for leave to adduce fresh evidence. Directions were made for the appellant to file and serve the proposed fresh evidence and submissions, for the respondent to file submissions in response and for the appellant to reply. It was also directed that the application to adduce fresh evidence be determined on the papers together with the appeal. Accordingly, these reasons also consider the application for leave to adduce fresh evidence.
Admissions were tendered pursuant to s 644 of the Criminal Code dealing with the complainant’s date of birth in 2004, the appellant being the biological father of the complainant, dates between 2007 and 2011 when the appellant was absent from home due to service in the Australian Defence Force, and dates that the appellant was hospitalised and not at home in September 2009, February 2010 and February/March 2010.
At the conclusion of the respondent’s case, the appellant was called on and elected to give evidence.
The evidence in the trial was heard over three days, 10 to 12 June 2024, and closing addresses were made on the afternoon of 12 June 2024. The trial judge then summed up to the jury and the jury retired at 3.53 pm. The jury returned at 4.36 pm and was let go at 4.39 pm to resume deliberations the next day.
At about 3.43 pm on Thursday 13 June 2024, the trial judge received a note from the jury as follows:
The complainant’s mother gave evidence including as follows:The complainant was born in April 2004.The complainant lived with the appellant at the Eatons Hill address from January 2008 to April 2010.The appellant was responsible for bathing the complainant and her brother. The children were bathed together.There were occasions when the children used the shower. The children were supervised, or the appellant got in the shower with them.There may have been occasions when the children bathed separately. However, she did not recall as she did not oversee their bathing.The complainant spoke with her in August 2021 and said that the appellant had done things to her when she was younger, and she was having memories of him doing things to her.The complainant said that she remembered being on a bed with a blanket box at the end of the bed, the appellant shut the door, she was playing with herself, and the appellant was above her, on top of her.On a separate occasion, the complainant asked her if the appellant liked “teeth” involved in oral sex.
Under cross-examination, the evidence of the complainant’s mother included:At the Eatons Hill address the appellant did have a video camera, but she could not recall what it looked like. It was not digital but used little tapes.She could not recall whether the appellant shaved his pubic hair and was uncircumcised.The complainant had “become quite unwell” in July 2021.
The appellant gave evidence at the trial, denying the alleged offending. His evidence included:He first became aware of the allegations in September 2021.He thought the complainant’s stepmother had put the complainant up to making the complaint.He denied having sexually abused the complainant.His penis is uncircumcised, and he had shaved his pubic hair in the relevant time period.He did not recall owning any wooden chairs and did not have a black flat camera or a video camera at the Eatons Hill address.
In cross-examination, the appellant gave evidence that it was possible there could have been occasions when the children bathed separately but he could not recall any occasion when that occurred.
Turning to consider the grounds of appeal.
The fourth basis for Ground 2 is that the prosecutor mocked the defence theory during cross-examination. The question was put to the complainant’s stepmother that:
In respect of the fourth basis of Ground 2 which relates to the re-examination of the complainant’s stepmother, the question was objected to and not pressed. This would not have distracted the jury from the task of the proper and dispassionate examination of the issues.
Ultimately, even if the question should not have been asked in the manner that it was, it is a question of degree on the facts and in the circumstances of the particular case. Undertaking that assessment, the respondent submits that there has been no miscarriage of justice.
In response, the respondent addresses the three bases and submits that Ground 3 must be dismissed.
In respect of disclosure, the respondent submits that the appellant’s argument is factually incorrect. The complainant’s stepmother gave evidence at the trial that she had seen certain information on a website, and she had provided it to police. At that stage there was a request for production of the material. The subsequent evidence of Officer Pavicic was that nothing had been sent to police, and the material was provided as a result of the request for disclosure. Accordingly, there was no breach of the obligation of disclosure. Further, there was no identified unfairness or prejudice to the appellant. This is also consistent with no application being made at the trial.
In respect of the dates of the offending in the indictment, the respondent contends that the appellant was always aware of the specific case against him. The indictment was presented on 13 October 2022 and remained in the same form until the trial in June 2024. Consequently, it is submitted there is no unfairness or prejudice and no substance to this contention.
In respect of the complaints about the police investigation, the respondent submits that there was no further investigation that could have been undertaken. No particular witness or subject for investigation is identified.
Overall, in respect of Ground 3 the respondent submits the appellant has not identified any unfairness to the appellant and there was no miscarriage of justice. Accordingly, the respondent submits that Ground 3 must be dismissed.
Accordingly, Ground 3 is not established.
The trial judge noted the long delays by the complainant’s mother in answering questions, with one occasion timed by the trial judge at one minute thirty-five seconds. This was described as “extraordinary”.
However, the trial judge did not make a particular direction or give a caution to the jury in respect of the evidence.
In respect of the evidence of the complainant’s stepmother, the appellant points to credibility issues, including a motive arising out of the ongoing custody dispute and a “known criminal record”. The appellant contends that the jury was not directed on the credibility issues and the prosecution failed to disclose some evidence relevant to it.
The last aspect of Ground 4 is prejudicial conduct by witnesses and external influence on the jury. The appellant contends that:The complainant’s mother:Made a statement inferring that further charges were pending against the appellant. When asked if other charges were pending the complainant’s mother stated “not currently” which suggested knowledge of other unreported allegations.Feigned trauma and implied that both children had been harmed. When questioned by counsel for the appellant, the complainant’s mother had stated “so many memories, so many times, both children”. The appellant submits the witness became confused and later “snapped” at counsel. This included asking whether she could ask questions, after which the trial judge had a recess. The appellant contends that this shows “highly prejudicial conduct aimed at inflaming jury emotion and introducing inadmissible character evidence”.During the recess after the above exchange, the jury sent a note asking whether an unanimous or a majority verdict was required and requesting to review witness statements. The appellant contends that this shows that the jury were divided, potentially confused by the remarks, and uncertain about the standard of proof.The complainant’s stepmother:Started an “on-line smear campaign” in April 2022 under a false account name. This included posting information about the investigation.Admitted under cross-examination to operating the account. She also admitted posting about a protected hearing in the District Court. She also admitted to posting about the trial date on a public page, with comments about the appellant.Gave evidence that she thought using a fake name meant that there was no way of connecting the comments with the case.Gave evidence that the reason for the posts was having to move “four times for safety”, without other evidence to support the comment.The trial judge failed to stop the evidence or caution the jury on the prejudicial nature of the evidence.The online conduct was corroborated by the appellant receiving letters and texts from a community member.11Police refused to investigate complaints about the online campaign and threats.
In response, the respondent addresses these three aspects of Ground 4.
In respect of the alleged witness collusion and memory contamination, the respondent submits that these issues were fully explored in cross-examination at the trial. It was expressly put to the complainant’s stepmother that the complaints were false and were a result of the complainant’s stepmother “planting” the memories in the complainant’s mind.
This was not put to the complainant’s mother, as the issue was not raised on the evidence in respect of her.
At the trial, counsel for the appellant engaged with this evidence and made submissions in the closing address. Further, the respondent submits that the trial judge gave the appropriate directions, including that the jury scrutinise the complainant’s evidence with great care. At trial, counsel for the appellant did not require any redirections.
The respondent also submits that there is no prejudice or unfairness to the appellant’s trial identified in respect of this aspect of Ground 4.
In respect of the witness conduct and credibility issues relied upon, the respondent submits that these were matters that were in the hands of the jury for their assessment of the credibility of the witnesses.
The issue of a witness having a criminal history which was not disclosed was not raised in evidence at the trial. Other than the submission of the appellant, there is also no evidence on the appeal. This issue ought to be disregarded.
More generally, the respondent submits that no directions were sought relevant to this aspect at trial. While that is not determinative, it is a consideration. When considered in the context of the trial, the respondent submits that this supports the view that no further direction was required.
The respondent contends that no further directions were required and there was no prejudice or unfairness to the trial.
In respect of the alleged prejudicial conduct by witnesses and external influence, the respondent submits that none of the matters raised establish any prejudice or unfairness to the trial.
In particular, in respect of the evidence of the complainant’s mother:The witness referred to “both children” in the context of being questioned about whether a conversation with the complainant had occurred at home or in the car. This issue was expressly, and strongly, pursued through further cross-examination by counsel for the appellant. The witness said “I wasn’t accusing …” before an interruption.The trial judge and the appellant’s counsel had an exchange in respect of this issue, with the judge indicating he had formed a different impression of what the witness had meant.A voir dire was held in the absence of the jury, which clarified the witness’s evidence.The timing of the jury question was irrelevant to this issue.The trial judge gave a direction that the witness and the appellant’s counsel had been at cross-purposes and there was no suggestion that the appellant had sexually offended against his son.The jury could have been left with no doubt on this issue given the direction.The terms of the direction were discussed with counsel before the jury returned. While this is not determinative, it supports the view that in the context of the trial no further direction was required in respect of this evidence.
Further, in respect of the evidence of the complainant’s stepmother:The issue of posting on a social media page under a false name was explored in cross-examination.The jury had evidence from which they were invited to draw a conclusion in respect of the credit of the witness.The appellant raises “letters and texts” from the community arising from the posts, however this was not factually raised at the trial. It is irrelevant to the trial.Further, there is no evidence that any member of the jury was aware of any pre-trial information. The jury was directed that they could only act upon the evidence at the trial.
In light of this analysis, the respondent submits that the appellant has not established a miscarriage of justice and Ground 4 must be dismissed.
Later that same evening, the complainant, the complainant’s mother, and the complainant’s stepmother went to a different police station.
On 3 September 2021, the complainant’s stepmother sent messages to the appellant, which included:
The appellant relies on the cumulative effect of the factual inconsistencies, the improper admission of hearsay and the prejudicial witness conduct as resulting in an unfair trial and unsafe verdicts. The appellant submits that it is the “confluence” of these factors that results in a miscarriage of justice.
In response, the respondent again deals with each of the bases identified and ultimately contends that each fails to establish any prejudice or unfairness in the trial.
As to the factual inconsistencies relied upon, the respondent addresses each of these factual matters as well as the acquittal on Count 4.
In respect of the evidence of the appearance of the appellant’s penis and pubic hair, this was before the jury for their determination as to what evidence was accepted and any conclusions that could be drawn from the evidence that was accepted.
It is submitted that the verdicts indicate that the jury either did not accept the appellant’s evidence or, if they accepted the evidence or had a doubt about the issue, the jury concluded that it did not undermine their findings that the complainant was credible and reliable for Counts 1 – 3 and 5.
In respect of the evidence concerning the “wooden door”, there was independent evidence that the complainant was wrong about the “wooden door” being there. The complainant accepted the independent evidence. The jury reasoning on this issue would have been similar to that outlined at [239] above.
In respect of the camera, there was inconsistent evidence on this from three witnesses: the complainant, the complainant’s mother, and the appellant. Again, this issue was before the jury to be determined. Relevantly, the jury acquitted on Count 4, being the count to which this evidence was relevant. There was also inconsistent evidence relevant to this Count about whether a “wooden chair” had ever been in the master bedroom.
The respondent submits that this is consistent with the jury following directions. Faced with conflicting evidence in relation to two aspects of Count 4, the acquittal reflects the appellant being given the benefit of the doubt that was raised.
As to the improper hearsay submission, the respondent contends that this does not raise anything additional and is not capable of establishing a ground of appeal.
As to the prejudicial conduct submission by the appellant, the respondent refers to the previous submissions in respect of the evidence of the complainant’s stepmother. These were matters that were before the jury, including the credit and reliability of the complainant’s stepmother.
Further, the respondent contends that the evidence was not of any real central relevance and does not support a conclusion that the trial was unfairly prejudiced.
Ultimately, the respondent submits that Ground 5 must be dismissed as there has been no miscarriage of justice.
Again, in respect of the evidence of the complainant’s mother, this was also for the jury to consider in light of the addresses and the trial judge’s directions. In many respects this repeats what is in previous grounds of appeal and the reasons given previously are equally applicable here.
The factual inconsistencies, the alleged improper admission of hearsay, and alleged prejudicial witness conduct pointed to by the appellant are not of such a nature, separately or together, to give rise to a miscarriage of justice.
To the extent that they were raised in the trial, they were matters left to the jury with appropriate directions from the trial judge.
No miscarriage of justice has been established and Ground 5 must be dismissed.
Again, the jury were able to consider how these issues of reliability affected the complainant’s credibility. The jury were directed on the relevant issues at the time concerning the complainant’s age and the circumstances of the complainant’s recall.
In addition, the respondent submits that the issue of prejudice due to delay did not arise as there was no real contest as to the possibility that the incidents could have occurred.
The first element of this Count is touching of the complainant with any part of the body. Given the age of the complainant, the absence of consent was not an issue.
The next element is that the dealing was indecent. Here, this turned on what was proven to be done and whether it had a sexual connotation on the part of the appellant. Relevant factors to be considered include the relationship between the complainant and the appellant, the relative ages, where the complainant was touched, and the nature of the interaction between them. This could include things said and done leading up to, during, and immediately after the touching.
A further element is that the touching was not justified, authorised, or excused by law. That element was not in issue in the current case. Similarly, the complainant being under 12 years of age at the time was not in issue, as well as that the complainant was the lineal descendent of the appellant. It is uncontentious that the complainant is the daughter of the appellant. The element of the complainant being under the care of the appellant was not contested on the evidence at trial. Whilst this needed to be proved by the respondent, it was not in dispute on the evidence that the appellant had responsibility for the complainant at the time alleged.
Again, the central issue in respect of Count 3 was whether the evidence established beyond a reasonable doubt the touching and that it was indecent. This turned on whether the complainant’s evidence established those matters beyond a reasonable doubt.
Ground 1 does not directly involve a consideration of Count 4 given the jury’s acquittal, except to the extent that the inconsistencies in the complainant’s evidence in respect of that Count impact on the complainant’s overall credibility and reliability. This will be addressed further when considering those matters more broadly.
It is necessary to look at the complainant’s evidence as to Counts 1, 2, 3 and 5 in some further detail, and then to look at the broader evidence and the impact of that on the credibility and reliability of the complainant.
As the appellant gave evidence at the trial, it is necessary to consider whether the evidence established the elements in issue notwithstanding the sworn denials by the appellant.
At the time of giving evidence the complainant was 19 years of age. She gave evidence of living at the address at Eatons Hill and that she recalled several things the appellant did to her.
The complainant’s evidence was that she was naked in the bath downstairs at the house. The appellant was clothed and outside the bath. Her evidence was that the appellant put his hand in the “inner folds” and felt her vagina. Further, that the appellant put his hand to her anus and inserted a finger. The complainant was aged around five or six at the time.
The complainant’s evidence was that the appellant touched her vagina by “caressing ... between the folds” and she could feel the sensation of his fingers between the folds. Shortly after that, the appellant slid his hand back and inserted a finger into her anus. Again, the complainant gave evidence that she could feel the sensation.
The complainant gave evidence that she remembers trying to resist and thinks she was trying to move away but does not remember saying anything. The complainant also remembered that after she tried to move away the appellant held her head under the water in the bath until she stopped resisting. This happened between being touched on the vagina between the folds and the appellant putting his finger in her anus. Once she stopped resisting, he touched her the second time.
The complainant gave evidence that she recalled another time when she was in the master bedroom upstairs at the house. She was laying on her back on the bed, with her feet dangling off the edge of the bed. Both the complainant and the appellant were fully clothed, and the appellant was on top of her. The appellant was feeling her upper body, her chest and arms while she was masturbating over the top of her clothes. The complainant remembers rubbing her clitoris until she reached orgasm and then the memory ends. The complainant recalls being around five or six years old when this happened.
The complainant also gave evidence of a third occasion in the ensuite bathroom when she was in the shower with the appellant. The complainant’s evidence was that after the shower they were both naked and she “gave him a blow job”. She further described this as she was sucking on the head of the appellant’s penis with her mouth. The complainant recalls being outside of the shower in the middle of the bathroom, standing, not kneeling as she was the “right height”. The complainant’s evidence was that the appellant had dark, coarse pubic hair and was circumcised.
In respect of this occasion, the complainant said that the appellant did not orgasm, and he got dressed and left the room. She then got dressed and left. The complainant recalls being a bit older on this occasion, “maybe seven”.
The fifth occasion recalled by the complainant was in the upstairs bedroom when she was sitting on a wooden chair masturbating over her underwear while the appellant filmed her with a flat camera. The complainant gave evidence that the appellant said something about her making him money. The complainant thought she was around five or six on this occasion.
The complainant drew a floorplan of the house and indicated where the bathroom, the master bedroom, and the ensuite were located.
In her evidence in chief the complainant said that “as a kid” she had not told anyone about what the appellant had done to her but had recently told the complainant’s stepmother before she reported it to the police. The complainant’s evidence was that she did not tell the complainant’s stepmother the specifics as she “didn’t want to make her less valuable as a witness”. This was her understanding based on what the complainant’s stepmother had told her.
The complainant was cross-examined extensively about her evidence. This included questioning about where the family had lived up to 2007 and periods of separation of her parents. The complainant could remember living in Albury-Wodonga at some point and moving back to Brisbane with her mother. The complainant could also recall her parents separating and getting back together “quite often”.
Relevantly, the complainant could recall the family living at the address at Eatons Hill and going to school. Further, she could recall that her parents separated in April 2010 and that she then lived primarily with her mother.
The complainant’s stepmother moved into the Eatons Hill house around the time the complainant was seven years of age. The appellant left the Army in 2011 and did shift work. At this time, the complainant mainly spent weekends with the appellant.
The complainant was questioned about how often she had seen the appellant from 2020. It was put to the complainant that she had seen him regularly, once every few weeks. The complainant’s recollection was that she saw him a few times a year.
The last time that the complainant saw her father was April 2021, before she recalled the memories of any sexual behaviours in September 2021. The reason for contact stopping was just because they did not organise anything.
There was conflict between the complainant and the complainant’s mother in August 2021 and the complainant stayed with a friend and then with the complainant’s stepmother.
The complainant was questioned about particular dates when the appellant was away with the Army or in hospital. The complainant could not recall specific dates. These dates are the subject of separate admissions.
In cross-examination, the complainant was also questioned about the layout of the house. The complainant was questioned about the incorrect layout of the house in the drawing of the house based on her recollection. In particular, the complainant was questioned about a door referred to in her statement to police. The complainant described a wooden door on the landing where the stairs came up.
The complainant was shown a photograph with a cat in the house, including a view that indicated there was no door. The complainant accepted that and said her statement that the appellant closed the door was the best of her ability to remember.
The complainant was also questioned about the location of the wooden chair. The complainant said that the wooden chair was in the bedroom, in the middle.
In August 2021 the complainant first spoke to the police. She made her first statement to the police on 2 September 2021, and she spoke with them again on 14 December 2021. On 2 September 2021, the complainant had telephoned the appellant and told him of her memories. The police recorded the telephone call. The appellant repeatedly said none of the things had happened. The complainant told him the memories had come back to her and felt real.
The complainant spoke with the police again on 7 July 2022 and said that she could recall more things. The complainant was questioned about the differences between her statement to police on 14 December 2021 and her statement to police on 7 July 2022. The complainant accepted that she did not remember the appellant putting his finger in her anus in September 2021, but in July 2022 she had told police that had occurred. The complainant’s evidence was that the memory came back between giving the statements.
Further, in respect of the wooden chair, the complainant had no memory of that when she spoke to police in September 2021, but that had come back to her by July 2022.
It was put to the complainant that she had no recollection at all of the appellant sexually abusing her until August 2021. The complainant denied this. The complainant gave evidence that she recalled the incident on the bed where she was masturbating “on a surface level” but did not know that it was sexual assault at the time, when she was five or six years old. She did not fully comprehend it until August 2021. She remembers the event but had pushed it down and did not understand at the time what it meant.
In respect of the other memories, the complainant’s evidence is that “they sort of came back”. The complainant told police the memories came back after she read an article about male sexual abuse. Reading the article made her realise that even though she was the one who was masturbating it was still sexual assault because the appellant was the adult.
The complainant read the article before speaking with police and giving her statement but cannot recall exactly when. She had found the article online but cannot recall the website. The article contained different segments on about 30 different people.
The complainant also gave some evidence about other people, including her older brother who she said had ADHD and autism spectrum disorder, the complainant’s stepmother, and the complainant’s stepsister, who was approximately nine years younger than the complainant.
The complainant’s evidence included that initially she had conflict with the complainant’s stepmother and there were occasions when she did not go to the house, including after the complainant’s stepsister was born.
From 2016 the complainant was aware that there was conflict between the appellant and the complainant’s stepmother. She was spending less time with the appellant.
A few months before she spoke with police she was aware that there was conflict between the appellant and the complainant’s stepmother in relation to the complainant’s stepsister.
The complainant gave evidence that in early August 2021 she was having some mental health issues.
Her evidence was that the memories of the sexual abuse came back a week or two before she spoke with the complainant’s stepmother on 17 August 2021.
There had been verbal disagreements between the complainant and the complainant’s mother. Around this time, the complainant also left the complainant’s mother’s house and visited a friend for one night and the complainant’s stepmother for a few nights. Further, the complainant accepted that up to the point that she was staying elsewhere she had been suicidal. She had been sleeping on the floor even though she had a bed, was showering with her clothes on, and was disassociating in that she felt disconnected with her body and was retreating into her head.
During the time she stayed with the complainant’s stepmother, the complainant made a disclosure to the complainant’s stepmother. After the disclosure, the complainant’s stepmother told the complainant that she was going to a mediation with the appellant.
The complainant’s evidence was that they were putting the complainant’s stepsister to bed in the master bedroom as she was struggling to sleep. The complainant was looking at her stepsister and crying. The complainant’s stepmother took her into the stepmother’s son’s room, where the complainant had been sleeping. That is when the disclosure was made.
The complainant was quite emotional and said along the lines of “I think dad may have sexually assaulted me when I was younger”. She does not fully remember the exact words used. The complainant accepted that the use of the word “may” could have indicated she was not entirely certain whether it actually happened, or a hesitancy to disclose.
The initial disclosure included that she was around six years of age, the memories had only recently resurfaced, and that she was scared that the memories were not real. The fear that the memories were not real went away once she went in “to court” and disclosed it and had people there who were believing her. When queried, the complainant corrected her evidence to when she went to the police.
Further, the complainant’s only disclosure to her stepmother was that she had been sexually abused and that the appellant had used his hands. The “memories were still foggy” and she did not want to disclose anything she did not know happened. The complainant told the police that she had just told her stepmother she had been sexually assaulted but did not go into specific details. The complainant was not sure now about the specific words she used in the disclosure.
There was a discussion between the complainant and her stepmother about telling the complainant’s mother. The complainant said she did not want to tell her mother.
Later the complainant’s stepmother told her that the laws relating to disclosing child sexual abuse required the stepmother to tell police and make a statement. It was discussed at that point that the complainant’s mother would need to be told. Just a few days after the initial disclosure, the complainant’s stepmother told the complainant she had gone to the police.
The complainant’s evidence was that her stepmother had told her that she had herself gone through sexual assault, but her stepmother did not make any suggestion to the complainant that the complainant had been sexually assaulted.
In respect of the complainant’s earlier evidence that she had not told her stepmother details as she did not want her stepmother to be less valuable as a witness, this was in case the matter went to court. The complainant explained that her stepmother had told her that and she just wanted to be careful. It was clarified that the complainant’s stepmother had said that the complainant should not tell the complainant’s stepmother details so as to not make her less valuable as a witness. The complainant was hesitant to disclose details and the complainant’s stepmother assured her she did not need to because of the emotional strain and the possibility of it going to court.
There was a further discussion about going to court when there was a disclosure to the complainant’s mother. The complainant had not spoken to her mother about the detail of what happened, just the fact that it had happened.
The complainant accepted that she could have had a conversation with her mother in which she asked whether there was a bathtub at the Eatons Hill house, but did not remember it. She also accepted she could have asked her mother whether the appellant liked oral sex with teeth, but could not remember the conversation.
In cross-examination, the complainant was questioned about an inconsistency between her statement to the police and her oral evidence in chief in respect of the evidence of what happened in the ensuite bathroom. The complainant had told police the appellant had said something like “use a little bit of teeth”, but she did not mention this in her oral evidence. The complainant’s evidence was that she had forgotten that when giving evidence in chief, but she did remember it.
The complainant then gave evidence that she did have a conversation with her mother about it but did not tell her mother why she was asking. The complainant thought the conversation with her mother occurred in the car, but could not recall whether her mother said “[i]f you’re having a memory about it, maybe he was asking you not to use your teeth”.
The complainant’s stepmother made the initial contact with the police. Then, on 21 August 2021, the complainant, the complainant’s stepmother and the complainant’s mother went to the police station together. They spoke to a police officer initially together and then the complainant gave her statement separately.
On 4 September 2021, the complainant made a further statement to police. This included the incident in the bathtub. In respect of this incident, the complainant told police she was five or six years old. The complainant had earlier told her stepmother she was six or eight years old. Shortly before the pre-recorded evidence, the complainant had told the prosecutor that she was aged four to five years old.
The complainant was questioned about the layout of the bathroom, including the bathtub, how she was positioned, and the position of the appellant. The complainant described being on “all fours” when the appellant rubbed her vagina.
In cross-examination an inconsistency was explored with the complainant in respect of her evidence that the appellant pushed her head under water and that she had fought back. The complainant accepted that she had told police on one occasion she had been pushed under the water but not on another. When she was reviewing her written statement to police, she had clarified that. Further, she believed she had said in her police statements she had fought back and had said that in her evidence in chief.
In her second statement to police the complainant had said that the appellant had inserted his finger into her anus for two to three minutes and made circles with his finger. In her evidence in chief the complainant had not said anything about the length of time. Her explanation was that she had forgotten.
The complainant’s evidence was that she could remember that it hurt when the appellant inserted his finger into her anus, but she did not recall bleeding and did not recall having to go to the doctor.
In respect of the incident in the bedroom on the bed, the complainant was questioned about her position on the bed and the appellant’s position. The complainant’s evidence was that her calves and feet were dangling off the bed, towards the ensuite. The appellant had his knees on either side of her hips, and she was masturbating herself with her hand. The appellant was hovering over her and was touching her. They were both clothed.
It was put to the complainant that the incident as she described it just could not have happened. The complainant did not agree.
In respect of the incident involving the wooden chair and camera, the complainant did not tell police about this incident on 4 September 2021 but did tell the police about it on 7 July 2022. The complainant says she did not remember it at the time of the first statement to police.
The complainant was questioned about the wooden chair and when the chair was in the bedroom. The complainant’s evidence was that it was a dining room chair that was not in the bedroom for a prolonged period of time. The complainant’s evidence in chief was the first time she had said this detail. The complainant was also questioned about the black camera. It was described as black, flat, and needed two hands to hold it.
In respect of her memory of this incident, the complainant said that this memory came back in “middle, early 2021”, before she went to hospital.
The last incident in time was also explored in cross-examination. The complainant said that she thought this occurred before Halloween. The complainant’s evidence in respect of the ensuite incident was that she was “crotch height” and was standing and not kneeling, the appellant was circumcised and he had dark, unshaved pubic hair. When it was put to the complainant that the appellant was uncircumcised and had shaved pubic hair, the complainant said that her evidence was what she remembered.
The cross-examination of the complainant also dealt with other matters that were not directly relevant to the Counts on the Indictment but went to her credibility and reliability as a witness. This included evidence about an incident involving her grandmother’s partner picking her up and touching her bottom outside her clothes. On 7 July 2022 the complainant had told police about this and gave a description that he was “old looking … had grey hair ... was on the skinny side”. In cross-examination the complainant was shown a picture of her grandmother’s partner which showed brown hair and average build. The complainant’s evidence was she did not remember specifically what he looked like.
The complainant was also questioned about another matter that she had told police about involving a single mattress. This was not related to the Counts on the Indictment but was explored on the basis it may have been another incident of alleged sexual abuse but that it did not involve the appellant. It was not relevant, except possibly as to credit.
In cross-examination the complainant was also questioned about her diagnoses of autism, anxiety, depression and an eating disorder. She had been referred to the Child Mental Health Service in 2014, although the complainant could not recall the exact date. The complainant was 10 years old at the time. The complainant had also been seeing her GP for mental health issues.
The notes from the sessions with the Child Mental Health Service include that the complainant wished for her parents to be reunited. At the trial the complainant did not remember saying that, but accepted that the notes said that.
The cross-examination explored a number of matters in relation to the relationship between the complainant, the appellant, and the complainant’s mother. This included a session in March 2017 where the complainant spoke about the appellant but did not raise any concerns about sexual abuse. Further, in April 2017, there was a discussion about the appellant’s house being disorganised and the children having minimal boundaries, but again no reference to any concerns about sexual abuse.
The complainant’s evidence was this was correct because she had repressed those memories.
In 2019 the complainant was referred again to the Child Mental Health Service suffering anorexia. The complainant’s evidence was that she stopped regular consultations not long after they began. However, according to the records the complainant was seeing someone at the Child Mental Health Service on at least a semi-regular basis between 2019 and 2021.
In July 2020 the complainant again spoke with someone from the Child Mental Health Service about the appellant and accepted she may have said things like he was “all right”, “not the best dad” and “not that responsible”. Again, there was no reference to sexual abuse. The complainant explained this was because the “memories hadn’t resurfaced again at that point”. In respect of the incident on the bed in the master bedroom, the complainant said that she was not aware it was sexual at that time and did not see the relevance of mentioning it.
On 23 August 2021, five days after the disclosure to her stepmother, the records show that the complainant was taken to the Child Mental Health Service. The complainant accepts that it was likely but does not remember it.
A letter of 6 August 2021 from a GP records that the complainant was disassociating. There was some uncertainty as to whether this was prior to the memories coming back. The complainant’s evidence was that she recalls at that point already remembering things and that was why she was disassociating and struggling mentally.
The last records of the Child Mental Health Service are dated 28 September 2021. The complainant accepted that she was disassociating up to then.
In 2022 the complainant was briefly hospitalised under an emergency examination order.
Further the complainant:Denied that her stepmother put ideas in the complainant’s head about sexual abuse.Denied that her stepmother had put ideas in the complainant’s head about sexual abuse because there was a mediation with the appellant in two days.Denied that she made false complaints because her stepmother told her to.Denied that she made false complaints because she did not want the appellant to see the complainant’s stepsister again.Accepted that at the time she made the statement her mental health was very bad.Said that after the memories came back she was disassociating, and that this was as a result of the memories coming back.Denied that the disassociating was causing her to confuse reality with fiction.Denied that her poor mental health caused the memories.Denied that the memories were fake.Denied when it was put to her that the alleged offending never happened and maintained that the acts occurred.Agreed that there was no door off the master bedroom.Said that the wooden chair was not always there, it was able to be moved, and was there during the incident.Agreed that she was wrong that the appellant was circumcised.Denied that the appellant always had his pubic hair shaved.
It is apparent from the complainant’s evidence that she was prepared to make concessions when appropriate, but also denied propositions that she did not agree with.
In relation to the evidence of the complainant’s stepmother, this has been dealt with in some respects earlier in these reasons. The evidence in respect of the following matters is dealt with in the identified paragraphs in these reasons and will not be repeated here:The complainant’s preliminary complaint to her stepmother is dealt with at [179] to [183] above.The initial complaint to the police is dealt with at [185] above.
The complainant’s stepmother was also cross-examined about the state of her relationship with the appellant at this time. This was relevant to the motive proposed by the defence to explain why the complainant had made the allegations of sexual abuse. This is also discussed previously at [195].
Further, the complainant’s stepmother was cross-examined about posts she made on social media under a false name about the appellant, the trial, and a hearing in respect of protected counselling communications. The evidence in respect of this issue is also discussed at [191] to [194] above.
The complainant’s stepmother:Denied planting memories in the complainant’s mind.Denied that she planted memories in the complainant’s mind to bolster her position in relation to parenting proceedings regarding the complainant’s stepsister.Denied that she instigated a police investigation against the complainant’s intentions.
In relation to the evidence of the complainant’s mother, this has been dealt with in some respects earlier in these reasons. The evidence in respect of the following matters is dealt with in the identified paragraphs in these reasons and will not be repeated here:The complainant’s preliminary complaint to her mother is dealt with at [200] to [205] above.The complaint to the police is dealt with at [206] above.
The complainant’s mother’s evidence included matters about the family relationship, where they had lived before Eatons Hill, and that they had lived at the Eatons Hill house from around January 2008. She moved out of the house in about April 2010 and the appellant continued to live at the house.
Further, the complainant’s mother gave evidence that the appellant would bath the complainant and her brother almost every night, that “was his domain and time with the kids”. This was the routine since they were babies. After the children were babies, the appellant would bath the children together. They would sometimes have showers and the appellant would supervise them. Sometimes they would all hop in together. They could have been bathed individually.
The complainant’s mother had quit her job at one stage as the complainant’s brother was diagnosed with ASD and ADHD and had been banned from before and after school care. The appellant kept doing the bath time routine. Sometimes she would do the shopping at nighttime when they had specials. The complainant’s evidence was that she was not always there to oversee everything at nighttime.
The timing of the bath time routine varied depending on whether both the appellant and the complainant’s mother were working and what else was happening.
After the complainant’s mother and the appellant separated, the complainant continued to visit the appellant at the Eatons Hill house every second weekend. At times, the time the complainant was at the appellant’s house increased a bit to Thursday to Saturday nights and some school holidays.
The complainant’s mother also gave evidence that she was aware of the complainant’s stepmother being at the house but cannot recall when she met the complainant’s stepmother. She wanted to meet the complainant’s stepmother in relation to co-parenting the children. She also gave evidence that she wanted to meet her even more when she heard that the complainant’s stepmother had showered with the complainant.
In 2021 the complainant’s mother and the complainant’s stepmother would not often be in contact. However, the complainant did still see the complainant’s stepmother occasionally.
The complainant’s mother was cross-examined about a number of issues, including where the family lived, when they moved to the Eatons Hill house, and the “affair” she had with the appellant from 2015 until January 2019, when the appellant re-partnered with another woman.
From December 2007/January 2008 until April 2010, the complainant and the complainant’s mother lived at the Eatons Hill house with the appellant and the complainant’s brother. Further, the complainant’s mother confirmed that the appellant would bath both the children together most of the time. Whilst the appellant was bathing the children the complainant’s mother would be in the kitchen preparing dinner.
Particular dates when the appellant was away were put to the complainant’s mother based on Army records. The complainant’s mother was unable to remember the dates, but if the Army records proved that the appellant was away then she would agree with that. Based on the dates put to her, the complainant’s mother did not accept that the appellant was away “frequently” in 2009.
Further, the complainant’s mother was questioned about the layout of the house and the furniture. This included the furniture in the master bedroom. The complainant’s mother recalled a blanket box and bedside tables as well as the bed. There possibly was a chest of drawers.
The complainant’s mother was also shown the photograph that included the cat and the master bedroom. The photograph showed the entrance from the stairs.
The complainant’s mother was also questioned about whether there was a video camera in the house in the period between 2008 and 2010. The complainant’s mother’s evidence was she did not think she had a video camera and to her knowledge the appellant had one. She recalled it took smaller little tapes. It was not digital. The complainant’s mother’s evidence was the appellant would have had it before being at the Eatons Hill house, but she is not sure if he had one after that.
The complainant’s mother was also questioned about the photograph of the complainant’s grandmother’s partner. She could recall him visiting in late 2009, early 2010.
The complainant’s mother was questioned about the complainant’s relationship with her stepmother and also the complainant’s visits to the Child Mental Health Service. Several matters recorded in the notes of the therapist at the Child Mental Health Service were put to the complainant’s mother and she accepted them on the basis they were in the notes.
Further, the complainant’s mother could not remember whether the appellant’s penis was uncircumcised and whether he shaved his pubic hair.
On 5 September 2021 the complainant’s mother gave a statement to police and she was questioned about the statement in cross-examination. She agreed with her previous statement that there was a period when the complainant did not go to the appellant’s house for about three months, around the time she was 14 years old. After that, the complainant possibly organised her contact with the appellant directly.
Further, the complainant’s mother told police that while the complainant’s stepmother and the appellant were together, she was having an affair with the appellant and the complainant’s stepmother did not know about it.
The complainant’s mother accepted that in July 2021 the complainant was not well, and on 6 August 2021 she took the complainant to a GP as she was expressing suicidal thoughts. The complainant had been suffering from anorexia the year before and had been hospitalised.
The evidence was also that, on 15 August 2021, the complainant had gone to stay with a friend and then with the complainant’s stepmother on 16 August 2021. The complainant returned to her mother’s house two or three nights later.
The complainant’s mother’s evidence was that, on 19 August 2021, the complainant’s stepmother came over and had a discussion with the complainant by herself. Then the complainant’s stepmother told her that what the complainant had said as the complainant “obviously had trouble disclosing it” to her mother. The complainant’s stepmother also told the complainant’s mother that she was going to the police station to report it.
The complainant’s mother also told the police about a disclosure that the complainant made to the complainant’s mother prior to going to the police station. This evidence has been considered previously, including:In relation to the disclosure about the memory about the bed and blanket box, this evidence is outlined at [206] above.In relation to the questions by the complainant about the bath and oral sex, this is outlined at [206] above.
In response to a question about when one of the conversations occurred, the complainant’s mother stated “both children” and stopped. The position in respect of this response has previously been considered and dealt with at [202] to [205] above. This was the subject of a specific direction of the trial judge as previously discussed at [205] above.
There was also further cross-examination about the complainant seeing the Child Mental Health Service in August 2014. It was put to the complainant’s mother that the treating practitioners recorded that one of the complainant’s “greatest wishes” was for her parents to be reunited. The complainant’s mother could not remember that.
In March 2015, the complainant was assessed with autism spectrum disorder and continued regular appointments in 2015. The complainant’s mother could not recall a session on 30 March 2015 which she attended with the complainant, the appellant, and the complainant’s brother, nor what was recorded in the notes.
The complainant’s mother accepted that she probably contacted the Child Mental Health Service on 24 August 2021.
Lastly, the complainant’s mother accepted that at one time the complainant did mention and question whether her memories were real.
Officer Pavicic met the complainant on 21 August 2021 but did not take her initial statement. She spoke with the complainant, the complainant’s mother, and the complainant’s stepmother initially together, and then she spoke with the complainant by herself.
Officer Pavicic gave evidence that she was aware that the complainant’s stepmother had originally gone to the Petrie Police Station as that was where they lived. However, she was told she needed to report the offence at the station where the offence was located, which was Ferny Grove.
In cross-examination Officer Pavicic was questioned about whether documents had been provided by the complainant’s stepmother showing court dates. The evidence in relation to this issue has been previously outlined at [138] to [142] above.
The appellant’s evidence included the family relationship, when the appellant and the complainant’s mother were together, and when they lived at the Eatons Hill house.
The appellant’s evidence was that he left the Army around Christmas 2011 and after that worked shiftwork for Greyhound Buses as a mechanic. The appellant’s evidence was that while he was in the Army he would have the children during school holidays and when he was with Greyhound he would have them when he was not at work.
The appellant also gave evidence that when he was told of the complainant’s allegations he was shocked and immediately thought that the complainant’s stepmother “had put her up to it”. The appellant denied ever sexually abusing the complainant.
The appellant also gave evidence that he was uncircumcised and, in the period between 2007 and 2011, he did not have pubic hair as he shaved it.
The appellant also was questioned in evidence in chief about the complainant’s grandmother’s partner and whether there was a hidden room in the appellant’s house with a mattress in it. The partner’s build was described as short and stocky. Further, there was no such room. These matters could only go to the credit of the complainant, as they were not relevant to the alleged offending. There was an objection to this evidence which was dealt with in the absence of the jury.
The appellant was also shown the photograph that showed the cat and the master bedroom, showing the stairwell leading towards the upstairs bedroom. There was no door.
The appellant’s evidence was that he does not recall any wooden chair in that room and does not remember owning any wooden chairs. Further, he did not own a flat black camera or a video camera.
Further, the appellant denied ever doing anything of a sexual nature to the complainant.
In cross-examination, the appellant:Accepted that he bathed the complainant.Denied that he touched the complainant sexually during any occasions where he bathed her.Denied that he put his finger between the folds of the complainant’s vagina and denied that he put his finger in the complainant’s anus.Denied that he had seen the complainant masturbate.Denied that on one occasion he had filmed the complainant masturbate.Denied that he owned a wooden chair at the time of the allegation, and gave evidence that he was using a metal outdoor setting as the inside dining chairs at the time.Denied owning a camera at the time. He did own a phone that was capable of taking video, but that was only ever known as a phone.Denied laying on top of the complainant and rubbing her body while she masturbated.Denied showering with the complainant and gave evidence that he supervised the complainant in the shower, including helping rinse her hair, while clothed.Denied that there was one occasion when the complainant performed oral sex on him.Denied that there was one occasion where he held the complainant’s head under water.Admitted he was at the Eatons Hill home for periods of time, and there were periods he was away.Admitted when he was home, he mostly had care of the children.Admitted he routinely did the bathing of the children.
In respect of the shift work at Greyhound Buses, the appellant gave evidence that his shifts were 8 hours long and on a rotating roster. The shifts included over weekends and were very variable. Sometimes he would be working at night. When he was not at work, he was taking care of the children.
The appellant also gave evidence that he moved out of the Eatons Hill house in early 2012 as he was no longer entitled to live there after leaving the Army.
The appellant’s arguments include that there had been a miscarriage of justice by reason of the trial judge’s failure to properly, or adequately, direct the jury on the inconsistencies in the complainant’s evidence in that the jury could draw an adverse inference against her credibility as a witness and the reliability of her evidence.
The trial judge gave a specific direction about the need to very carefully scrutinise the evidence of the complainant before acting on it. There was no requirement on the trial judge to do more.
The issue was properly that for the jury to determine whether they accepted the complainant as a reliable and credible witness. The jury was appropriately directed that they needed to accept the complainant to be a witness of reliability and credibility before they could be satisfied beyond a reasonable doubt of the appellant’s guilt.
Further, it was not the function of the trial judge to suggest what inferences could be drawn from the evidence, including those adverse to the witness.27 The jury was properly instructed on the proper basis for drawing inferences.
In addition to the matters summarised in these reasons and considered in respect of the separate grounds of appeal by both the appellant and the respondent, I have assessed the overall sufficiency and quality of the whole of the evidence.
A consideration of the record as a whole supports the conclusion that it was open to the jury to be satisfied of the appellant’s guilt of Counts 1, 2, 3 and 5 on the Indictment as particularised by the respondent, beyond reasonable doubt. The verdicts of the jury were not unreasonable.
Accordingly, Ground 1 has not been established and must be dismissed.
The respondent objects to the further evidence and submits that it is of no relevance to the appeal.
The distinction between fresh evidence and new evidence was considered by McMurdo JA (with whom Morrison JA and Boddice J agreed) in R v SDT:30
It would have remained open to the jury, hearing all of the evidence, and the further evidence, and properly directed, to be satisfied of the appellant’s guilt of Counts 1, 2, 3 and 5. No miscarriage of justice has been established.
In the circumstances, it is not appropriate to admit the further evidence on the appeal. Accordingly, leave to adduce the fresh and new evidence should be refused.
There was no evidence to support this contention at the trial or on appeal. ↩
This must be understood to be the direction given about the “both children” answer following the intervention by the trial judge discussed at [205] above. ↩
(1996) 190 CLR 348. ↩
The appellant also relies on another authority which does not have a correct citation and has not been able to be located under the name provided, being a de-identified acronym. ↩
[2022] QCA 260. ↩
With whom Mullins P and Boddice J (as his Honour then was) agreed. ↩
(1996) 190 CLR 348 at 367. ↩
(1994) 181 CLR 487 at 493. ↩
See previous discussion at [253]. There are potentially three aspects of Count 4 with conflicting evidence: the door, the chair and the camera. ↩
[2022] QCA 260. ↩
(1993) 179 CLR 44, 51-52; [1993] HCA 71. ↩
(1994) 181 CLR 487. ↩
Longman v The Queen (1989) 168 CLR 79. ↩
Dansie v The Queen (2022) 274 CLR 651, 665-666 at [35]. ↩
Dansie v The Queen (2022) 274 CLR 651, 658 at [9]; M v The Queen (1994) 181 CLR 487, 493. ↩
Pell v The Queen (2020) 268 CLR 123, 145 at [39]. ↩
R v Ali [2025] QCA 164 per Boddice JA. ↩
R v Katsidis; ex parte Attorney-General (Qld) [2005] QCA 229 at [2] and [11]. See also Ratten v The Queen (1974) 131 CLR 510, 516-517; Lawless v The Queen (1979) 142 CLR 659, 674-676; Mallard v The Queen (2003) 28 WAR 1, 6-9; Beamish v The Queen [2005] WASCA 62, [8]-[9]. ↩
R v Katsidis; ex parte Attorney-General (Qld) [2005] QCA 229 at [11]. ↩
[2022] QCA 159. ↩
At [54] – [62]. See also R v Stephens [2021] QCA 127 at [27] per Fraser JA, McMurdo JA and Brown J). ↩
Craig v The King (1933) 49 CLR 429, 438. ↩
R v Ryan [1940] St R Qd 170. ↩