_R v KS_

[1]

Director of Public Prosecutions (Qld) for the respondent

[2]

[1] JERRARD JA: These proceedings are three separate appeals, CA No 144 of 2006, and CA Nos 6 and 7 of 2007. CA No 144 of 2006 is Mr KS's appeal against his conviction, after a trial, on 31 March 2006 on three counts of unlawful and indecent treatment of a child KM, then aged under 12 and under his care. On 18 May 2006 the learned trial judge sentenced Mr KS to three years imprisonment for each offence, less 286 days of pre-sentence custody which could not be declared. CA No 6 of 2006 is Mr KS's appeal against his conviction of 7 December 2006, by a jury, of five counts of unlawful and indecent dealing with SC, a child under the age of 12. CA No 7 of 2006 is Mr KS's application for an extension of time within which to appeal against his conviction on his pleas of guilty, entered on 1 February 2006, to counts of having unlawfully and indecently dealt with PT a child then under the age of 12, and a separate count of having raped a child AT. On 7 December 2006 Mr KS was sentenced to three years imprisonment for each offence committed in relation to SC, to three and a half years imprisonment for the offence committed against the child PT, and four and a half years imprisonment for the offence committed against the child AT. Those sentences imposed on 7 December 2006 were all concurrent, and the learned judge fixed a parole eligibility date of 14 March 2008. Those sentences began on the date of sentence.

[3]

[2] The sequence of alleged wrongdoing by Mr KS[1] advanced by the Crown on his last sentence proceeding (7 December 2006) was that he committed the offences against PT first, between 23 July 2001 and 25 July 2002. Then followed the offences allegedly committed against KM, assertedly happening between 1 August 2003 and 20 October 2003. Mr KS was charged with the commission of those offences against KM on 8 May 2004. He allegedly offended against AT, on a date alleged to be between 1 January 2004 and 22 November 2004. He was charged with committing the offences against both PT, and AT, on 9 December 2004, and so the prosecution were unable to clarify whether he allegedly committed the offences against AT before or after being charged with the offences allegedly committed against KM. Then came the offences allegedly committed against SC, said to have occurred on 12 December 2004, three days after he was charged with the offences against PT and AT. He was taken into custody on 14 December 2004, and has remained there since.

[4]

[3] In the appeal CA No 144 of 2006, Mr KS was indicted on three counts of rape of the child KM, allegedly committed between 1 August 2003 and 20 October 2003 at Waterford West. He was charged with a fourth count, alleging that between 30 September 2003 and 1 January 2004, at Waterford West, he without legitimate reason wilfully exposed KM (then under 12 years of age) to an indecent pornographic image. The jury found him not guilty on count 4, and acquitted him of the count of rape on each of counts 1 - 3 inclusive, but convicted on each on the alternative counts open on those three charges, of indecent treatment of a child then aged under 12 and in his care.

[5]

[4] The evidence against Mr KS very much depended on statements KM made in interviews recorded by investigating police officers with KM, and on some further video recorded evidence-in-chief and cross-examination of KM, which took place before another District Court judge on 12 August 2005. The first interview between KM and investigating police was on 12 March 2004, with another interview on 9 April 2004. In the 12 March 2004 interview, KM described going with her younger sister JM to Mr KS's residence, to sleep over at his house. KM said the two children liked to do that, because Mr KS would take them to a McDonalds for breakfast. KM explained that Mr KS used to be "mummy's friend from bowling."[2] In that interview KM said she had slept about eight times at Mr KS's, and last did that in about September 2003.

[6]

[5] KM's stepfather gave evidence, that he and KM's mother had joined a bowling league that Mr KS was involved in, in 2003. They played on Friday nights. He thought that began in March 2003, and continued thereafter almost every Friday night. Occasionally KM and JM would stay at Mr KS's house:

[7]

"Often after bowling on Friday night, occasionally Saturdays."[3]

[8]

He thought that happened overall between 10 and 20 times. The stay overs were suggested by the children, mostly by KM.

[9]

[6] KM's mother also gave evidence of having joined that ten pin bowling league, in or about May 2003, and playing thereafter nearly every Friday night. She confirmed that JM and KM would stay with Mr KS, because the children liked to go to his house.

[10]

"He had Playstations and stuff like that, so they enjoyed them kind of things, so they would ask, yes...to go over there."[4]

[11]

On her recollection the children stayed with Mr KS mostly on a Friday night, occasionally on a Saturday, and KM first made a complaint about Mr KS's behaviour on 3 March 2004. She said that KM said Mr KS had pulled her pants down and touched her, and:

[12]

"Then he would roll her over and do things to her and that's all she would tell me".[5]

[13]

[7] The evidence included that a medical examination of KM, conducted on 18 March 2004, revealed that her genitalia, including her hymen, were normal, and there was no evidence of penile or digital penetration of the vagina or anus. However, the evidence included the observation by the medical practitioner that it was unsurprising there was no evidence, even if such penetration had in fact occurred.

[14]

[8] Other evidence led by the prosecution included evidence from the investigating police officer, Detective Lockhart, that Mr KS's computers had been seized and the hard-drives searched, and nothing had been located on those corresponding to what KM said she had been shown by Mr KS. There was also evidence put in without objection, that KM's parents played in a ten pin bowling competition, beginning on 27 June 2003. There was no evidence as to the end date of the competition. Regarding a "Harry Potter" video KM said she had watched at Mr KS's, records of a local video store showed Mr KS's last recorded visit there was on 24 August 2003 with no visits in September, and there was no record of him hiring a Harry Potter film.

[15]

[9] KM gave a general description in the first part of the interview of 12 March 2004, that Mr KS had wanted her to sleep in his bed when she stayed over, and had taken off his pants, and hers, and had started kissing her. The last time she slept over at Mr KS's premises was some four or five days after her mother and father had won a prize at bowling. The other evidence did not establish any date on which her parents won a prize at bowling. On that last occasion nothing had happened, and she could not remember anything happening on the first time she stayed over. She thought about six times (of the eight), he had pulled down both his pants and hers, when they were in the bed.[6] She first met him, she thought, in August 2003.

[16]

[10] She had said, a little earlier in the interview, that she had last slept at Mr KS's house in September 2003, and could fix that date because it was the last day of bowling, when her parents were getting a prize.[7] She said about the first time she stayed there, that her sister JM was there too, and that she (KM) slept in Mr KS's bed. JM slept in the spare bed. KM remembered wearing pyjamas that night, which included a cow shirt and blue pants, which had a flower and a bee design on them.

[17]

[11] On the third time (that they stayed there) she was wearing a "flowered top, silky", and silky pants, and Mr KS was wearing "boxers".[8] Again, JM was in the spare bed, and on that occasion KM could remember going to bed late, at about 11.30 pm. They had all watched a Harry Potter movie and had had pizza for tea. She went to bed in Mr KS's bed, and he took off both his pants and hers, and locked the door so JM could not come in. She saw Mr KS naked when he took off his pants and noticed that his "thingy" or "doodle" was hairy, and that he had two "thingies" on it, namely two "balls".[9] She saw that his "doodle" (identified by the questioner as a penis) was "pointing upwards", and when he got into bed he lay close to KM and put his "doodle" "up my bum" or "up my hole".[10]

[18]

[12] She described that as "the poo one", and said that it felt disgusting; this lasted for "a couple of minutes". Then Mr KS "put it on my other hole", he being on top, just "laying on me".[11] She identified the "other hole" as "the one that you pee out off". He kept "putting it back and forwards", and then grabbed her arms and put them around his neck.

[19]

[13] A little later, she said the incident had begun that night with Mr KS putting his hand up her shirt at the back when she was lying on her side, and she rolled over. He was lying on his tummy and:

[20]

"He went on me and um put his doodle up my bum."[12]

[21]

She said she was crying, and that she had said: "I want to go home"[13]; and that she had said that because she did not want to tell Mr KS that what he was doing hurt her very much.[14]

[22]

[14] When she said she wanted to go home, Mr KS offered to put her on his walking machine, which she said was in the garage. It was about 2.00 am or 3.00 am that that promise was made, and she said she was actually put on the walking machine in the garage at that time. She had put her clothes back on, as had he; she also said that:

[23]

"He kept on doing it all night long." (Referring to "The stuff" and "The in bed thing").[15]

[24]

She also said that after being on the walking machine, she had said she wanted something to eat, and had chosen a soup from his cupboard, at around 2.30 am. The soup was a noodle. Then they went back to bed, and:

[25]

[15] There is some inconsistency in that account, chiefly as to what happened after she had been on the walking machine and had the noodles. On that account, both penile penetration of the anus and the vagina happened on the same evening, the third time she stayed in Mr KS's home, and before she had said she wanted to go home. Still on that same account, KM said that the next morning they all went to McDonalds for breakfast, and then she played on a playground, and "we just went home". The investigator endeavoured to identify a date for that occasion, and KM said it was on a Saturday night, Sunday morning; at first she said the event was after, and then that it was before, her (step) father's birthday on 19 October. Her stepfather confirmed in his evidence that was his birthday. The period alleged in the indictment ends on 20 October 2003, the day after. She settled on the events she then described having happened one month before the birthday, that being the third time she had slept over there. That would make it the weekend of 20 and 21 September, 2003.

[26]

[16] She was then asked about the fourth time she stayed, and she said she went into his bed again, but that she did not want to do anything and just rolled over and would not listen to Mr KS.[17] She also said that nothing happened that night, and she could not remember any other time. Asked why, she said she had a short memory loss.[18]

[27]

[17] She was then asked why she could remember the one occasion about which she had told the investigator, and she said that that was because it was:

[28]

Asked more questions about that particular occasion specified by her, she said that he had kissed her on the lips and put his tongue in her mouth:

[29]

"Nearly all the time. Like - like - when he was doing it"[20],

[30]

and that that felt disgusting, and that his finger had been:

[31]

which she said happened about 1.00 o'clock or 2.00 o'clock. He had put his penis in her vagina about 2.00 am or 2.30 am.[21] When his finger was in her vagina, her back was facing him. Then he put his penis in her bottom, and subsequently rolled her on her back and:

[32]

"A couple of minutes later he put his finger in my second hole."[22]

[33]

[18] That account had become confusing as to the sequence but was consistent as to a description of anal and vaginal penetration by a penis, and vaginal penetration by a finger. However, so far that account had described all of this occurring only on the one night. That soon changed, because shortly after, in the same interview, KM said that about four weeks later:

[34]

"he was kissing", he was "putting his doodle up my bum", he just "put his doodle in my vagina" and "and then was - he did his finger."[23]

[35]

On that description that same variety of sexual encountering happened on two separate occasions, about one month apart. Regarding the second alleged occasion, she described feeling that his penis felt hard when he was pushing it into her bottom, and that the second occasion was about one month after the first, and after her father's birthday.[24] That meant, as the questioner pointed out, that if the first one happened about a month before her father's birthday, and the second one four weeks later, the second one was around the time of the father's birthday. KM agreed.[25]

[36]

[19] The questioner sought to establish that there had only been the two occasions of sexual activity, but KM then said that:

[37]

"There were six times that he did it, but that - that he was actually mainly the second thing."[26]

[38]

"The other four times that were like - they were still around dad's birthday."

[39]

(KM was specifying, in answer to a leading question, that there were six times when he had:

[40]

"Done this stuff with his penis in your vagina.")[27]

[41]

On that account there were at least six separate occasions of vaginal penile penetration. The first was about one month before her father's birthday on 19 October, and the remaining five were all around the later date.

[42]

[20] KM also said that she could not remember the last time she stayed at Mr KS's, but that was when he had ignored her and she had ignored him, and that she had told both her mother and "Owen", who was "mum's friend", about it. She had told Owen:

[43]

"Just the same thing but not the kissing and the doodle stuff."

[44]

"About just probably the same thing but told her the kissing."[28]

[45]

It seems she was telling the investigator that whatever preliminary complaints had been made by her, they were not of the same matters which she was then describing to the investigating officer. She also said that Mr KS had told her not to tell anyone what they had done.

[46]

[21] In an attempt to clarify a sequence, the investigator established in final questions and answers that the other four occasions were no different to the first two she had described, and that:

[47]

"He would just do the same thing", which was "kissing",

[48]

So at the end of that interview she had described penile penetration of the vagina and anus, and digital penetration of the vagina, as happening on six separate nights, but apparently not the first two on which she stayed, nor the last; making a total of nine separate occasions.

[49]

[22] She was interviewed again on 9 April 2004, but this time about a matter which became the subject of a fourth count, of wilfully exposing KM, then under the age of 12, to an indecent pornographic image. In that interview she said that Mr KS had put images of naked girls on the computer by typing in "S-E-X," when KM was sitting at it. This was the computer at his house, and when he typed in those three letters, she saw females on the screen, and saw:

[50]

She said in further answers that she was sitting on a chair in the lounge, and her sister JM had wanted to sleep over at Mr KS's premises, when her parents were at bowling. This was on a Friday. When the images described had come on the screen, she had seen them, and Mr KS had told her not to tell anyone. Eventually, she had told her mother, but about five months later.

[51]

[23] Those interviews with KM, conducted on 12 March 2004 and 9 April 2004, were admitted in evidence under s 93A of the Evidence Act 1977 (Qld). On 12 August 2005 a video recorded proceeding took place before a different District Court judge, in which KM gave some evidence-in-chief, and was cross-examined, pursuant to the provisions of Division 4A of the Evidence Act 1977. In very brief evidence-in-chief[31] KM said that what she told the police woman who interviewed her on two separate days was the truth, but in cross-examination agreed that she had told the Crown Prosecutor in the prior week (i.e. early August 2005) that she could not remember having the two interviews tape recorded by that police officer. Then, in re-examination, she said that when she stayed at "[KM's] house" - apparently an uncontested reference to Mr KS - he had told her she had to sleep in his bed, and when he turned off the light, he:

[52]

"Tried cuddling me and doing all the stuff".[32]

[53]

She explained that he was trying to kiss her, and touching her "like down below" with his hand, and explained that that meant "in between your legs".[33] She said that this had happened "that night, he locked the door"[34] apparently referring to one specific evening only, and that was all that had happened that night. She also described what appeared to be one other occasion of a visit to Mr KS's house, on which he had:

[54]

"Rolled me over and tried, like, to put his thing in mine"

[55]

She said that that was all she could remember and she could not remember

[56]

[24] There was then further cross-examination by counsel then appearing for Mr KS, but that was focused at first on the matter that involved count 4, the count of wilfully exposing KM to an indecent pornographic image. The cross-examiner concentrated on the account that all Mr KS had done was type "S-E-X" to produce "pictures" of:

[57]

"Naked women dancing or something, or laying down".[36]

[58]

[25] The cross-examination did return to the counts of penile penetration, and put the proposition that at no time had Mr KS touched KM on her vagina. She insisted that he had:

[59]

"The second or third time that I went over there"[37],

[60]

an answer consistent with what she said on her first interview on 12 March 2004. The cross-examiner also suggested that at no time had Mr KS done anything "with his doodle" and KM disagreed, saying that "he was putting it in my bum". Further cross-examination established that those two things had happened on the same occasion, and only one occasion.[38]

[61]

[26] But later in that same interview, KM said, in answer to other questions, that both those things had happened on other times as well, namely about four, and disagreed that Mr KS had never touched her vagina at any time. In further cross-examination she asserted that Mr KS had "put his doodle" against either her anus or vulva on three separate occasions, and had touched her vagina altogether on four separate occasions. On the first occasion when she was touched with "his doodle", Mr KS had "put it up my bum."[39]

[62]

[27] The cross-examiner ultimately extracted agreement from KM that she said the incident acts happened on four occasions, and that on all four the same thing happened, and that on each of them it hurt her.[40] KM disagreed with the proposition put to her that Mr KS had never touched her on the "vagina" and had not put his "doodle or penis" in her bottom.

[63]

[28] That was the totality of the evidence from the complainant, which was consistent enough in the description of touching of her vulva or anus by Mr KS's penis, this occurring on up to four separate occasions on which she stayed overnight at his place, out of a larger number of occasions, on some of which nothing happened. When touching did happen, those events could be related to approximately the date of her father's birthday. Beyond that there were really no particulars at all.

[64]

[29] Mr KS did not give or call evidence, and the jury acquitted on count 4, the one alleging wilful exposure of KM to an indecent pornographic image. That acquittal is readily understandable, because KM's evidence as to how the image came to be shown to her was subject to considerable criticism, and her description of what she saw had varied. The jurors acquitted of the charges of rape contained in counts 1, 2, and 3, but convicted on each on the alternative count of indecent dealing with a child under 12 who was in Mr KS's care.

[65]

[30] The learned trial judge had told the jurors that count 1 was based on penetration of the vagina by Mr KS's finger, count 2 on penetration of the anus by his penis, and count 3 on penetration of the vagina by his penis.[41] The judge had explained that if the jurors were not satisfied beyond reasonable doubt of the element of penetration, or that the act of penetration was without consent, they might then consider whether the evidence established proof of the alternative counts. On the verdicts it is clear the jurors were so satisfied, but what is very much at large is when, on the Crown case, those three counts occurred. It would have been open for the jurors to find they were all on one night, or that a variety of each (or all of them) occurred on anywhere between four to six separate occasions.

[66]

[31] Mr KS's counsel on the appeal (different from the counsel on either of the trials) referred the court to submissions prepared by Mr KS, in support of the contention in ground 1 of the notice of appeal, that the verdict of the jury was unreasonable and not supported by the evidence at the trial. I disagree; KM's evidence supported the verdicts, despite her inconsistency as to the number of occasions on which she had been sexually abused. Mr KS's written submissions, to which his counsel referred, included a good deal of complaint about the fact that his counsel at the trial did not question KM about the pyjamas she claimed to have been wearing. Mr KS's written submission asserted that in a third interview with KM, she had said to the police she was not wearing pyjamas, but had worn a shirt of Mr KS's, and KM's sister supported that version. Mr KS alleged that his barrister at the trial, and his then solicitor, had edited the s 93A tapes to remove all references to pyjamas, and had not insisted on the production of the tape of that third interview. This was apparently done to assist in the conviction of Mr KS. That ground of appeal makes no sense at all, both because there is reference to pyjamas in the s 93A tapes, and because there was no obvious benefit at all to be gained from cross-examining KM about whether she wore pyjamas or a large shirt. That cross-examination, if conducted, would just appear to the jury to confirm that KM and Mr KS had been in the same house at night, and that KM had no pyjamas.

[67]

[32] Mr KS's other written matters included the reasonably made point that KM had made a very late complaint, made only after her parents had separated. Further, she did not say she had ever made any complaints of pain or objection at the time the incidents were happening. Those points are valid, but do not make the verdict unreasonable.

[68]

[33] On this appeal, Mr KS's counsel submitted that the learned judge ought to have given further directions about what counsel submitted were uncharged acts. At the trial counsel had sought directions, which included one to this effect:

[69]

"If you do not accept the complainant's evidence relating to the incidents not the subject of these charges, take that into account when considering her evidence relating to the alleged events the subject of the charges before you."[42]

[70]

[34] The learned judge did not direct the jury in those terms, being concerned that if the jurors did accept KM's evidence about other, uncharged, matters, then they might (unfairly) take direction in the requested terms as enhancing her credit regarding the charged matters. The learned judge understandably thought that an undesirable result, and instead directed the jurors in the following way:[43]

[71]

"The accused is charged with four offences - four specific offences. You should consider each charge separately on the evidence that relates to that charge. [KM], however, also gave evidence the conduct of which count 1, 2, and 3 are founded was repeated on other visits in the same general time frame. That evidence of similar conduct on other occasions is not specific as to date or specific as to detail. This other conduct was placed before you during the trial. That other conduct can be used by you for one purpose only. If you accept the evidence it provides a context in which the offences we are concerned with occurred and it may show the true relationship between the accused and the child. The true relevance of that evidence, therefore, is that it provides a context which may help you assess and understand the complainant's evidence about a particular charge. You should have regard to the evidence of those incidents only if you find it reliable. If you accept that you must not use it to conclude that the accused is someone who has a tendency to commit the type of offence with which he is charged and is, therefore, guilty of the offences charged.

[72]

It would be quite wrong for you to reason that, he did those acts on other occasions therefore it is likely that he committed the charged offences. Further, you should not reason that the defendant had done things equivalent to the offences charged on other occasions and on that basis you should convict him of the offences charged, even though, the particular offences charged are not proved beyond reasonable doubt.

[73]

So, I direct you that the evidence of the incident not the subject of specific charges was placed before you only for that limited purpose mentioned: to provide a relevant context and to assist you [sic] understand the true relationship between the accused and the complainant. And before you may find the accused guilty of any charge you must be satisfied beyond reasonable doubt that that particular charge has been proved by the evidence relating to that charge."

[74]

[35] Those directions avoided the risk identified by the learned judge, namely that if the jury accepted evidence of uncharged acts, that those might be used to convict of charged acts; but the point not taken on the written argument in this appeal, but taken up in oral argument, was that there was no evidence separating or distinguishing the charged acts described in the indictment, and the uncharged acts. The evidence did not in any way discriminate or distinguish between those, as the learned judge had remarked to the jury. The offences which constituted the convictions on counts 1, 2, and 3 could have occurred on any one of some four to six occasions, all apparently ones in which identical abuse was committed in identical circumstances. Some of the jurors may have convicted in respect of offences considered to have been committed on the third occasion KM stayed at Mr KS's, and other jurors may not have had that event in mind when convicting of any of those three counts. Some may have had a date in mind of about one month before the 19 October birthday. The evidence and the directions result in it being impossible to identify when the jury considered that the events constituting those convictions had occurred. The jurors must have been satisfied that the events did occur, but were not required to be satisfied as to the same occasion.

[75]

[36] It follows that there was a latent ambiguity in the counts considered by the jury, of the kind described in the judgments in the High Court in S v The Queen [1989] HCA 66; (1989-1990) 168 CLR 266 at 274, per Dawson J, and also discussed in the judgment of this Court in R v C [2000] QCA 145. That means that an error of law has been established on Mr KS's appeal against these convictions. The question then is whether the absence of particulars has resulted in a miscarriage of justice, in circumstances where Mr KS had the same defence to each count.

[76]

[37] Mr KS's counsel at the trial did not ask for any particulars to be provided, under s 573 of the Code, of the occasion said to have constituted any of counts 1 - 3. Presumably, counsel was not concerned that the ambiguity about that prejudiced Mr KS's defence, which defence was put to KM, namely that none of those incidents had ever happened. It follows that, no application for particulars having been made, counsel saw no apparent danger to Mr KS in the deficiency of particulars in relation to charged acts.

[77]

[38] Mr KS's counsel on this appeal argued in a written submission that the evidence of uncharged acts was not admissible at the trial at all, referring to the observations by Callinan J in Tully v The Queen [2006] HCA 56. Counsel's submission conceded, however, that it was well established in Queensland that evidence of uncharged acts was admissible, for the purpose described by the learned trial judge. No objection was taken to the admission of that evidence at trial. A proper complaint could have been made at the trial, that the prosecution had not particularised in any way which of the approximately 12 to 18 separate offences possibly established in evidence (three offences each night, committed on between four and six nights) were the offences charged in the indictment. The circumstances of all were identical, other than the actual date each occurred. The prosecution could have particularised the events relied on as those on the third sleep over, or those on the weekend that included 20 September 2003. That was not done, there being no request for it. The defence Mr KS relied on could not depend, in those circumstances, on any variety of alibi regarding any particular Friday or Saturday night. A defence of that kind would have been more affected by the general prosecution imprecision about dates, than was the defence advanced that it was all untrue, and so Mr KS lost one means of defending himself.

[78]

[39] As Dawson J wrote in S v The Queen (at CLR 275):

[79]

"...the applicant was, in effect, reduced to a general denial in pleading his defence. He was precluded from raising more specific, and, therefore, more effective defences, such as the defence of alibi. Because the occasions on which he was alleged to have committed the offences charged were unspecified, he was unable to know how he might have answered them had they been specified."

[80]

That possibility, of the loss of an available defence because of an absence of particulars, means this Court must consider very carefully Mr KS's claim that he had evidence available at the trial - not called - which would have rebutted the charges on particular dates.

[81]

[40] Mr KS's written submissions regarding this appeal complain of the fact that his then legal representatives decided against calling evidence which he said was potentially available, and which included a description of what he had done on various dates in September and October 2003. Those ran from Friday 5 September through to Friday 31 October 2003. Only the Fridays were mentioned, and on only two days (Friday 3 October 2003, and Friday 31 October 2003) is there any description of any other people (other than KM and her sister) being at his home on the Friday night. On 3 October 2003 a Ross Anderson apparently slept over, and on 31 October 2003 the T family were described as staying until 10.30 pm that night. Had that evidence been called, it would not have provided a clear defence, since the other evidence was that the complainant KM sometimes slept over on a Friday, and sometimes on a Saturday, night. None of the potential descriptions of Mr KS's activities on other Friday nights in September and October 2003 contain the suggestion that he was not at his home on all of those other nights, or that any potential witness could have said that the children were not there too. That material does not show a positive defence in the nature of an alibi available in respect of any of the possible occasions when KM said Mr KS had abused her.

[82]

[41] The material Mr KS read on this appeal, by leave, confirmed that KM often enough asked to stay over at his house, and that so too did other children. It did not suggest that he was absent from his home on any night KM could have been describing. It did raise the contention that KM was not there on Friday 17 October 2003, the one before the birthday, contrary to evidence from KM's mother. It did suggest there were quite a few overnight attendees in the period of the indictment, but not where they slept, nor whether the other guests saw or did not see KM there too, or whether they could say she was not there on any specific night. The statutory declarations provided by the named visitors said nothing about the presence or absence of KM or her sister, when those people stayed overnight. Overall, the material was too general to suggest Mr KS may have been able to raise a doubt as to KM's presence in his home if a specific date or event had been particularised. It follows he lost only the slimmest chance of an acquittal because particulars were not sought or given. But added to that very slim chance is the fact that the jurors may have convicted with different occasions in mind, and not of the same offence. The learned trial judge was obliged to ensure the jury all had one and the same occasion in mind for each of counts 1, 2, and 3.

[83]

[42] I would allow the appeal on the ground of a possible miscarriage of justice arising from the admission of the evidence of the other acts and their indistinguishable character from the charged acts, because of the possibility that the absence of particulars led to convictions for more than the same offence, and made the defence more difficult. Particulars could have been given, and would have narrowed the issues.

[84]

[43] There was also a separate complaint that assertedly fresh evidence suggested the possibility of a wrongful conviction. This evidence appeared to be that KM had told another child, ET, stories to the effect that Mr KS would murder KM and her family. ET was herself a named complainant in a count on the indictment alleging offences against the children PT and AT, although the count alleging offences against ET resulted in a verdict of not guilty, in a separate trial, on 11 October 2006. But the fact that KM told ET things about Mr KS says nothing about KM's evidence before the jury. No proper grounds of appeal are made out, because of those conversations between children, against the convictions for indecently dealing with KM.

[85]

[44] In any event, that evidence was not fresh, because ET had been cross-examined in video taped proceedings conducted on 30 November 2005, and had given evidence then of conversations with KM, in which KM had made statements to the effect that she was scared of Mr KS, explaining that she thought Mr KS might "murder me or something like that." That stale evidence does not suggest the possibility of a wrongful conviction.

[86]

[45] This appeal attacks his conviction on 7 December 2006 by a jury on 5 counts of indecently dealing with SC, a child under 12 and in his care. On this appeal too, his counsel requested that the Court consider Mr KS's written submissions.

[87]

[46] The evidence in that trial included an interview between police and SC, conducted on 13 December 2004 and video recorded. There was then a second video recorded interview between SC and police, conducted on 7 January 2005. There was then a video recorded examination-in-chief and cross-examination, conducted before a District Court judge on 19 April 2006.

[88]

[47] In the interview on 13 December 2004 SC said he was there with the police because:

[89]

"[Mr KS] was touching me in the rude parts".[44]

[90]

"Last night I went over to [Mr KS's] house cos my mum - he just got his computers back and my mum let him borrow some CDs to put on his computer. And when they were copying I was laying on the bed with no clothes on and he was playing with my rude parts, between my bum and my willy."[45]

[91]

He said that they had been for a swim at Kingston Pool, and had been wearing clothes only when they went to the pool. He explained that they had gotten undressed in Mr KS's house, because they had all met each other at a nudist camp and:

[92]

"Like everybody in my family and [Mr KS] like [sic] to run around naked ... because we're used to it."[46]

[93]

[48] He then described how when he was lying on the bed, naked, telling Mr KS what songs were being recorded, Mr KS had come to the bed and pulled SC's legs open. SC pushed Mr KS's hand out of the way, and Mr KS repeated the act of pulling his legs part. Then they both went to bed, in the same bed, with Mr KS's dogs lying between them. Nothing else happened, and the next day he was dropped at home by Mr KS, and SC told his mother what had happened. The only description he gave at that stage of that interview, about what had happened, was that Mr KS had used his finger to rub between what SC called his "bum" and his "rude part", he had pushed the hand away, and Mr KS had then forced his legs open again. After the interview was adjourned, SC added to that description that he had been:

[94]

"Laying on the bed like this and he come up and started running his finger down and blowing so it would make it tickle me, and he got near my rude part."[47]

[95]

"Before the first time when he touched me between my rude parts."

[96]

[49] Then on 7 January 2005, in a further interview, SC said that Mr KS on that occasion had: "Tried sticking the vibrator up my rude part." That was a significant new allegation. Further detail given on that date included that: "I was just laying there on my - on my belly, like - like this...and then um, he stuck the vibrator up my bum. Well, he tried to, but I rolled over."[48]

[97]

[50] He added a little later in that interview, describing the vibrator, that: "It's glitter and [indistinct] G spot, and he um, he said um, um, he told all about the G spot and all that." (Adding that the G spot is "well, it's up your bottom, up near your tail bone).[49] A little later on 7 January 2005 he said he knew of vibrators because: "My mum has one, but she never uses it around us kids." And that Mr KS "always uses them."[50]

[98]

[51] He explained that: "Every time I go into the room he's got it turned on the whole time." And that: "Like um, he got it up his bum, um, and playing with his rude part at the front." He said to the police on 7 January 2005 that when he got home he told his mother about that, and she had then taken him to the Woodridge Police Station.

[99]

[52] Asked some further questions by the police officer, he said on 7 January 2005 that his mother had told him what the vibrator was called, and he had seen it in "her undies drawer." In his video recorded examination-in-chief and cross-examination conducted on 19 April 2006, he said he had made a complaint to police on 13 December 2004, and that a couple of weeks later he had told his brother that Mr KS had:

[100]

"Tried sticking a vibrator up my bum."[51]

[101]

That sequence is consistent with the transcripts. He agreed in cross-examination that his complaint to the police on 13 December had been:

[102]

"I just told them that [Mr KS] tried - well, touched me around my rude parts"[52],

[103]

and agreed he had not mentioned the vibrator until a couple of weeks later. He also agreed that when describing Mr KS running his fingers down and blowing to tickle SC, he was not suggesting that Mr KS had then touched the "rude parts", and agreed he was laughing. The cross-examiner put that Mr KS had never attempted to put a vibrator in SC's bottom, but SC disagreed[53], and further denied that Mr KS had never at any stage had a vibrator inserted into his own bottom. SC maintained that Mr KS did:

[104]

It follows that SC was consistent enough in his descriptions, once all of those were given, describing events occurring on a single occasion when he stayed overnight on 12 December 2004. On the appeal against those convictions, counsel quite properly made the point that it is odd that no mention was made of a vibrator on the interview of 13 December 2004. But the vibrator may not have been as significant to SC as it was to adults and investigators.

[105]

[53] Regarding those convictions, the jury were directed that count 1 consisted of the allegation that SC was lying on the bed, wearing shorts, and that Mr KS ran his finger over SC blowing on him, and got "near his rude parts." The Crown contention was that Mr KS was sitting either on or near SC and was naked.[55] Count 2 was described as consisting of SC lying on the bed naked, and with Mr KS playing:

[106]

"With his rude parts between his bottom and his willy."[56]

[107]

Count 3 was described as being the allegation that Mr KS forced SC's legs apart and touched him between his penis and his bottom again, and count 4 consisted of the attempted insertion of the vibrator in SC's bottom. Count 5 was an alternative count of indecent dealing, based on the same incident, and count 6 consisted of the claim that Mr KS was observed to a have a vibrator in his own bottom (by SC, and was seen to be masturbating).[57] The jury acquitted on the count of attempted rape with the vibrator, count 4, but convicted on the other five counts.

[108]

[54] The first ground of appeal against the convictions on the counts of indecently dealing with SC contended that those verdicts cannot be supported having regard to the evidence. That ground is untenable, because SC's evidence supported the convictions, although that evidence contained internal inconsistencies. Those inconsistencies did not result in an absence of sufficient evidence, and it was open to the jury to be satisfied that Mr KS had done as alleged on that one night. Other grounds of appeal assert that fresh evidence has become available, referred to in Mr KS's written submission. The fresh evidence was that SC's mother had told solicitors not to use statutory declarations made by her, and that she owed money to Mr KS. Neither of those matters, if both were placed before the jury, would be in any way likely to have affected the verdict. Other than that, Mr KS's written argument concentrates on inconsistencies in SC's evidence, a matter already obvious to the jury, and complains of bias by the learned trial judge, and of improper behaviour by counsel representing Mr KS at the trial. That was a different counsel from the counsel who represented him at the trial in relation to the charges concerning KM, although the complaint about both counsel appear similar. Mr KS alleges each counsel independently was overly co-operative with the prosecutor, and generally acted against Mr KS's interest. Nothing in the appeal record supports any of those complaints in any way.

[109]

[55] One ground of appeal against the convictions for indecently dealing with SC complained that the learned trial judge did not allow the jurors to hear again the video recording of the pre-trial evidence of SC, recorded on 19 April 2006, when the jurors had requested access to that. What the jurors asked was:

[110]

"Can we please review all video evidence in the jury room?"

[111]

The learned trial judge was satisfied that the jurors could be allowed to have the interviews with the police, admitted under s 93A of the Evidence Act 1977, replayed again in the court room. That view accorded with authority, but the learned judge also considered that this Court's decisions required the judge to hold against allowing the jurors to replay the video recorded examination-in-chief and cross-examination of SC, conducted on 19 April 2006. The learned judge was concerned that allowing the jurors to replay that recorded examination-in-chief and cross-examination would treat that evidence differently from the other evidence given before the jury at the trial.[58]

[112]

[56] In accordance with those views that learned judge caused the interviews with the police and SC to be replayed in the court room, with the judge and counsel present, and the jurors again retired. There were no further requests to view any other video recorded evidence, or have transcripts of it read to them.

[113]

[57] Mr KS's counsel on this appeal submits that what happened, namely the replaying before the jury of the interviews with the police, but not the replaying of the examination-in-chief and cross-examination, resulted in the very matter about which McMurdo P had given warnings in R v H [1999] 2 Qd R 238. There the learned President expressed concern that jurors may give undue weight to video recordings admitted under s 93A if those went into a jury room and could be replayed at will. It is true the learned judge did not give the jurors any extra warning at the time the interviews with the police were replayed, but none were asked for. The jury were not put in the position in which they could simply replay those at will, or often, and accordingly there are no good grounds for the view that the jury may have given undue weight to those police interviews. In any event, those interviews rather highlight the inconsistency in SC's evidence, in the way in which the allegations about the alleged use of the vibrator emerged only at the second interview.

[114]

[58] There appears no reason in principle why pre-recorded cross-examination and evidence-in-chief should not be replayed by a jury - in the court room, with the court present - should a trial judge consider that appropriate. Nothing appears to have happened here which would have diminished the effect of that video recorded evidence-in-chief and cross-examination, or unduly promote that of the video recorded interviews with the police. Accordingly, that ground of appeal does not establish any error by the learned trial judge capable of causing any miscarriage of justice.

[115]

[59] This is an application for an extension of time within which to challenge Mr KS's conviction on 1 February 2006 on the counts to which he pleaded guilty. A learned judge of the District Court had refused him leave to have those pleas of guilty set aside, by orders made and reasons given on 4 December 2006. This is really an appeal against that ruling, in which counsel contends that those pleas were not voluntarily entered, and for that reason a miscarriage of justice occurred.

[116]

[60] Counsel again relies on Mr KS's own written submissions. Those focus on the friendship between KM, the complainant in the proceedings in CA No 144 of 2006, and ET, the complainant in respect of whom Mr KS was actually acquitted. That friendship does not establish any presumption of error or inaccuracy in the allegations made by PT and AT, of offences to which Mr KS pleaded guilty. Nothing in Mr KS's material demonstrates or suggests that he failed to understand he was admitting guilt to those two offences by pleading "guilty". Some of the argument he makes focuses on an allegation that his then counsel had wrongly claimed not to have previously seen photographs produced by the prosecution on 1 February 2006, the day of the plea. But that counsel, and the solicitor then instructing him, gave evidence before the learned District Court judge who refused to allow Mr KS to change his plea of guilty in December 2006, and the learned judge most certainly did not reject any of the evidence of either legal practitioner. That makes it very difficult for Mr KS to rely on his sceptical disbelief of those practitioners, in his application attempting to overturn the decision refusing him that leave, and to substitute pleas of not guilty. Mr KS explained on this appeal that he relied, for the opinion that his lawyers had seen the photos before 1 February 2006, on the fact that - on his instructions - his counsel had asked ET on 30 November 2005 if she knew that Mr KS had photographs of the T family. Mr KS explained to this court that he had not shown his lawyers whatever photos he had. It must follow that he knew that his counsel's questions on 30 November 2005 were not based on his counsel having seen any photos. There are no grounds on which to disbelieve the lawyers when they said, on 1 February 2006, that that was the first time that they had seen those photos. The photographs were apparently recovered from Mr KS's computer, and the solicitor's description of them in a file note dated 1 February 2006,[59] said they were:

[117]

"A large number of photographs which showed our client in various poses with children. Subject to the pre-recordings the poses were somewhat promiscuous and there were also photographs of young girls pulling their pants down, showing their buttock [sic]. It was quite indicative of the photographs that if they went into evidence that a jury at trial would simply find the photographs unacceptable behaviour and would simply find that it is a course of conduct, given the allegations of children."

[118]

[61] In those circumstances Mr KS's contention that, because the police had seized the photographs, counsel had seen them before 1 February 2006, and improperly delayed the court process with a request to review the photographs, establishes nothing at all that is relevant or that suggests any miscarriage of justice in the plea. Mr KS plead guilty to those two counts, and the particulars of those, presented to the sentencing judge on 7 December 2006, included that the female complainant PT had stayed over at Mr KS's house about 20 times over the course of the year from 23 July 2001 until 25 July 2002, and that on one occasion, when Mr KS was lying on his bed naked, he had asked PT to "do it with him". She refused, but he pulled her on top of him with his legs on either side of hers. His penis touched her legs.

[119]

[62] The other matter, the rape of AT, occurred on that complainant's description in the second term of that school year, and on one night he stayed at Mr KS's premises. Two of his siblings had been there during the day, watching movies and playing video games. They fell asleep, and Mr KS said that AT could stay there too, and could "sleep in my bed". In the bedroom Mr KS encouraged, if not forced, the complainant AT to remove his clothes, and when the sleeping complainant awoke during the night, he discovered he was lying on his stomach and Mr KS was attempting to:

[120]

Next morning Mr KS threatened AT that if he told his parents, Mr KS would:

[121]

Those facts admitted by the plea, amply establish those offences. Mr KS signed written instructions on 1 February 2006, which specified that he pleaded guilty of his own free will, foregoing the right to cross-examine PT or AT, and leaving un-contradicted the accounts each gave in their interviews with the police. The instructions recorded that the basis of his plea was the contents of those interviews. Those signed instructions show that his pleas were carefully considered, and that he hoped the judge would consider he had demonstrated remorse by pleading guilty. Mr KS now claims he felt under pressure from his lawyers, but what he signed disproves that claim.

[122]

[63] For the reasons given, I would dismiss the appeals in CA 6 of 2007 and CA 7 of 2007, allow the appeal in CA No 144 of 2006, and set aside the convictions regarding KM. I would order a re-trial, because although the imprisonment has probably been served, the Director may wish to re-try the allegations with particulars. I add that Mr KS's grounds of appeal and extensive written argument reveal a complete absence of any empathy with the children who were the victims of his predatory sexual behaviour, and a complete absence of remorse or any sense of wrongdoing. He chooses instead to blame a wide variety of others, including the victims, for the fact that he is imprisoned. It will be a matter for the Community Corrections Board which hears his application for parole to determine whether Mr KS is a suitable candidate for release to the community, absent any evidence of changed attitudes.

[123]

[64] MUIR JA: I agree with the reasons of Jerrard JA and with his proposed orders.

[124]

[65] LYONS J: I have had the advantage of reading the reasons for judgment of Jerrard JA. I agree with the reasons and the orders proposed by Jerrard JA.

[125]

[1] Described by the prosecutor at AR 465.

At a glance

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Judgment (125 paragraphs)

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