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[2026] QCA 32
respondent. Leave to adduce new evidence on the hearing of the appeal was refused. The appeal was dismissed ([159]).
The Queensland Court of Appeal upheld PBU’s conviction for maintaining an unlawful sexual relationship with a child. It found that the appellant’s general criticism of the complainant’s evidence did not identify enough specific evidence to show the jury’s verdict was unreasonable. The charge gave adequate notice when read in light of the statutory rule that each act within this kind of relationship does not have to be separately particularised. The Court also rejected the claim that the defence’s handling of the complainant’s mother caused a miscarriage of justice. It was not persuaded that the mother would have given the proposed additional account at trial, and it considered that the proposed matters would not have materially altered the evidence before the jury. The application to rely on the fresh evidence was refused, and the appeal was dismissed.
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The Queensland Court of Appeal dismissed PBU’s appeal against his conviction for maintaining an unlawful sexual relationship with a child under 16, an offence under s 229B of the Criminal Code (Qld). The alleged relationship covered the period from 11 December 2020 to 12 December 2022, when the complainant was aged between 12 and 14 ([10]). The jury convicted PBU after a two-day trial. The District Court sentenced him to three years and six months’ imprisonment ([3]).
The indictment originally contained ten counts. Count 1 alleged maintaining an unlawful sexual relationship. The other nine counts concerned particular alleged unlawful or indecent dealings during periods within the Count 1 period, including rape and procuring an indecent act. At the beginning of trial, the Crown did not proceed with Counts 2 to 10, and the judge discharged PBU on those counts ([11]–[12]).
Count 1 was particularised by five types of alleged conduct: touching the complainant’s breasts, bottom and vagina; penetrating her vagina with fingers; and procuring her to touch PBU’s penis ([13]). The complainant’s evidence included allegations of repeated touching and other sexual contact, sometimes in the presence of, or near, her mother. PBU did not give or call evidence at trial ([15]).
On appeal, PBU advanced three grounds: that the verdict was unreasonable or unsupported by the evidence; that the complaint lacked sufficient particularity to allow a meaningful defence; and that his legal representatives failed to investigate and put material said to be available from the complainant’s mother ([5]–[6]). To support the last ground, he sought leave to adduce the mother’s affidavit and other additional material. The Court refused leave and dismissed the appeal ([159]).
Doyle JA gave the substantive reasons. Bond JA and Bradley JA agreed ([1]–[3]). The judgment’s central treatment is therefore Doyle JA’s assessment, adopted by the other members of the Court.
The first ground concerned the jury’s assessment of the complainant’s evidence. Under s 668E(1), the Court had to allow an appeal if it considered the verdict unreasonable or unsupported having regard to the evidence ([16]). Doyle JA explained that this requires an independent assessment of the sufficiency and quality of the whole evidence. But the appellate court must also respect the jury’s primary responsibility and its advantage in seeing and hearing witnesses ([17]–[19]).
The judgment stressed that an appeal remains an adversarial process. The parties must identify the evidence and features relevant to their cases. In particular, a party challenging a verdict cannot simply state that a witness was vague, inconsistent or lacking in probative force. It must identify the evidential basis for that contention ([17], [20]). Here, the appellant’s written submissions made broad criticisms but did not identify specific inconsistencies or inadequacies. The Court described that omission as unacceptable and noted that the relevant practice direction required a summary of relevant evidence and references ([20]).
The Court nevertheless reviewed the trial evidence and the challenges that were identified. It considered, among other matters, the complainant’s accounts of touching, the inconsistencies about the location and number of some incidents, the differences between her recollection and those of her friends, and the suggestion that she had copied Friend One’s account or had a motive to lie ([26]–[72]). The Court treated some of these matters as potential credibility issues, but considered that the jury could assess them in light of the complainant’s evidence as a whole. Doyle JA concluded that the evidence was not so undermined as to require the appellate court to find a significant possibility that an innocent person had been convicted ([86]–[89]).
The second ground turned on the legal character of Count 1. The Court accepted that an accused must be informed of both the legal nature of the charge and the particular act or matter alleged as its foundation. That entitlement must, however, be understood in the context of the charge ([91]). Section 229B defines an unlawful sexual relationship as one involving more than one unlawful sexual act. Section 229B(4) provides that the prosecution need not allege, and the jury need not be satisfied of, the detailed particulars that would be required if each unlawful act were charged separately ([92]).
The Court considered this statutory structure important. It reflects the possibility that a child may not be able to recall precise details of every act over the course of a relationship ([93]). Count 1 identified the alleged period and the kinds of sexual conduct said to have occurred. The Court considered that the date range was natural to this kind of charge, and that the particulars were not deficient merely because they did not give exact dates or further detail for every act ([95]). The appellant had also made no application for further and better particulars under s 590AA, a circumstance the Court noted when considering the claim that he did not know the case he had to meet ([96]).
The discontinuance of the other counts did not change the Court’s assessment. The appellant argued that the Crown’s decision, made at the beginning of trial, further hindered his ability to defend Count 1. But the Court was not shown how that decision reduced the particulars of Count 1. It also noted that the discontinued counts did not themselves add much detail to the alleged acts. The jury was directed not to speculate about the withdrawn counts ([97]–[100]).
The third ground alleged that the defence lawyers should have interviewed the mother, obtained a statement, and put further matters to her and the complainant. The Court approached this as a claim of miscarriage of justice, not as an occasion to decide abstractly whether counsel had acted competently. It adopted an objective approach: the question was whether the trial process resulted in a miscarriage of justice, not whether a different or better course could later be imagined ([106]–[110]).
The fresh evidence was important to this ground. The mother’s affidavit described evidence she said she wanted to give, including that she was a light sleeper, that the complainant was not allowed to sleep in the mother’s bed, and that the appellant’s arms were outside a blanket during a particular movie-watching occasion ([126]–[127]). The Court was not satisfied that she would have given this account at the relevant time. Her second police statement had said she had no further information to provide, and the Court found her explanations for the omissions unconvincing. It also compared her proposed account with the appellant’s written instructions, which did not contain several of the details later attributed to her ([129]–[147]).
The Court then considered, alternatively, whether the alleged omissions were material. It found that the proposed evidence about the mother being a light sleeper was not particularly persuasive; that the evidence about the complainant’s use of the bed did not establish that she could never have been there; and that some matters were already in evidence or had been put in cross-examination. The complainant’s regret about reporting to police had also been explored at trial, and the Court observed that regret was not an admission of lying ([152]–[157]). It concluded that the proposed questioning was not likely to have produced anything material capable of amounting to a miscarriage of justice ([157]).
The judgment did not announce a new test for unreasonable-verdict appeals. It applied the established approach under s 668E(1): an independent appellate assessment of the whole evidence, balanced against the jury’s responsibility and its opportunity to see and hear witnesses. The Court’s practical emphasis was that an appellant must identify the evidence and explain how it bears on the claimed unreasonableness. General descriptions of evidence as vague or unreliable do not perform that task ([17]–[20]). The judgment applied R v ZT and M v The Queen on the appellate assessment and the jury’s advantages ([17]–[19]).
On particulars, the decision applied the statutory text of s 229B rather than treating the charge as though it were a series of separately charged offences. Section 229B(4) expressly dispenses with the need to allege or prove the particulars that would be required for each act charged separately. The Court’s application confirms that the sufficiency of particulars is assessed in the context of that statutory design and the information actually given to the accused ([91]–[96]). It relied on R v CAZ for the legislative context and the practical issue of whether the accused had been given so little information that preparing a defence was impractical ([93]–[95]).
For counsel-conduct grounds, the judgment applied authorities including TKWJ v The Queen and Nudd v The Queen. It rejected a test focused on labels such as “flagrant incompetence” or “egregious error”. Instead, the Court asked objectively whether the trial process involved a miscarriage of justice ([106]–[110]). It also applied the materiality discussion in Brawn v The King and MDP v The King: an error or irregularity must have the capacity realistically to affect the jury’s reasoning, although the judgment recognises that the burden is not onerous ([149]).
The decision therefore illustrates how those principles operated on the particular record before the Court. It does not displace the statutory text or establish that the same degree of particularity will always be sufficient for every s 229B charge. Nor does it establish that counsel’s choice not to seek a further statement will always be unobjectionable. The Court expressly recognised that views may reasonably differ about the course taken, but found that the facts here did not establish a miscarriage ([151]).
At [20], Doyle JA stated that an appellant must identify “the evidential foundation” for saying a verdict is unsound. In plain English, a ground of appeal needs to point to concrete parts of the record and explain their significance. A broad assertion that a witness was inconsistent does not show the appellate court where the alleged problem lies.
At [91]–[92], the Court set out the relationship between the ordinary entitlement to know the charge and the special statutory form of the maintaining-relationship offence. In plain English, the accused must understand the nature of the allegation, but the statute does not require the prosecution to give the same detail for each act as it would if every act were a separate count.
At [94], Doyle JA said this was not a case where the appellant had been given so little information that preparing a defence was impractical. The point was not simply whether more detail could have been provided. It was whether the information supplied, read in light of s 229B, left the accused practically unable to prepare.
At [110], the Court said that a miscarriage is not established just because someone later says a different or better approach could have been taken at trial. In plain English, appellate review is not a general opportunity to redesign the trial. The focus is on whether something objectively went wrong in a way that caused a miscarriage of justice.
At [157], the Court applied materiality to the proposed questioning of the mother and complainant. Even accepting a relatively low threshold for materiality, it found the proposed additional evidence too limited, cumulative or weakly connected to the central allegations to establish a material error.
The judgment is most directly relevant where an appellant challenges a jury verdict by making broad assertions about witness reliability but does not identify specific evidential passages, inconsistencies or other features said to make the verdict unreasonable. The Court’s reasoning indicates that appellate submissions should identify the relevant evidence and explain its effect, rather than rely on characterisations alone ([17]–[20]).
It is also relevant where the charge is maintaining an unlawful sexual relationship under s 229B and the challenge is that the prosecution has not particularised every alleged act with dates or incident-specific detail. The judgment requires attention to the terms of s 229B(4), the actual particulars supplied and whether the information made preparation of the defence impractical ([92]–[96]). The decision does not mean that any description will suffice. It addresses the particulars in this case.
The counsel-conduct reasoning may be engaged when an appeal alleges that trial lawyers failed to investigate a witness, obtain a statement, call evidence or put matters in cross-examination. The judgment directs attention to the objective effect on the trial and the materiality of the alleged omission, rather than treating a later disagreement with counsel’s choices as enough ([106]–[113], [149]–[157]).
Finally, the fresh-evidence aspect is relevant where a proposed witness gives a later affidavit describing evidence they say they would have given at trial. This case shows the Court examining whether that evidence would in fact have been given at the relevant time, comparing it with contemporaneous statements and instructions, and assessing whether it could realistically matter to the verdict ([128]–[147], [155]–[157]).
The judgment does not discuss any later court’s treatment of R v PBU. The supplied text identifies no subsequent decision applying, distinguishing, or criticising this judgment. Its own treatment is of earlier authorities, which it applied or cited.
For the unreasonable-verdict ground, Doyle JA applied R v ZT and M v The Queen on the appellate court’s task and the jury’s advantages ([17]–[19]). The judgment also applied R v Smith; R v Sagar when discussing the need to identify the evidential foundation for a challenge ([20]).
For particulars, the Court applied R v CAZ and cited R v S, alongside the High Court authority Patel v The Queen, when explaining the right to know the charge and the effect of the statutory context ([91]–[96]).
For the alleged failure of counsel, the Court applied Huggins v Western Australia, Nudd v The Queen and TKWJ v The Queen to explain why the issue is the objective fairness of the trial rather than a general assessment of counsel’s competence ([106]–[113]). It applied Brawn v The King and MDP v The King to the materiality of an alleged error or irregularity ([149]–[157]). These are the authorities identified in the judgment; the text does not provide a basis for asserting how courts have treated PBU after it was delivered.
The judgment resolves the grounds on the evidence and arguments before it. It does not decide what particulars will be sufficient in every prosecution under s 229B. The Court’s reasoning depends on the charge, the specified date range, the listed categories of conduct and the statutory provision dispensing with act-by-act particulars ([92]–[96]). Whether a different indictment gives enough practical notice would require assessment of its own terms and circumstances.
The reasons also do not create a general rule that defence lawyers must, or need not, obtain a separate statement from a prosecution witness who has already provided a police statement. Doyle JA considered the actual statements, the mother’s evidence about her reluctance to speak with police, the appellant’s written instructions and the proposed fresh account. The Court’s conclusion was case-specific ([120]–[147], [151]).
Nor does the judgment establish that later evidence from a family member will ordinarily be rejected. Here, the Court gave reasons for doubting that the mother would have provided the proposed evidence at trial, including inconsistencies and omissions. It separately assessed whether the proposed matters were material even if they had been available ([128]–[147], [155]–[157]).
The judgment leaves untouched the factual assessment a jury must make when evidence contains discrepancies about dates, locations or surrounding circumstances. It recognises that such matters may bear on reliability, but holds that the jury was entitled to assess them alongside the complainant’s account and the other evidence ([36], [86]–[88]). The appeal did not provide a basis for the Court to replace the jury’s assessment with a different conclusion.
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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 PBU [2026] QCA 32
PARTIES: R / v / PBU / (appellant)
FILE NO/S: CA No 46 of 2025 / DC No 364 of 2023
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: District Court at Rockhampton – Date of Conviction: 25 February 2025 (Clarke DCJ)
DELIVERED ON: 3 March 2026
DELIVERED AT: Brisbane
HEARING DATE: 4 February 2026
JUDGES: Bond JA, Bradley JA, Doyle JA
ORDERS: Leave to adduce new evidence on the hearing of the appeal is refused. The appeal is dismissed.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of maintaining an unlawful sexual relationship with a child, the offence being a domestic violence offence – where the count was particularised as the appellant touching the complainant’s breast/s, bottom, and vagina, penetrating her vagina with his finger/s and procuring the complainant to touch his penis – where the appellant contends that the verdict was unreasonable and unable to be supported by the evidence – where the appellant challenges the complainant’s evidence on the basis that it was vague, contained discrepancies, displayed inadequacies and otherwise lacked probative force – where the appellant does not identify the evidential foundation for that contention – whether on an independent assessment of the sufficiency and quality of the whole of the evidence adduced at the trial the verdict of the jury was unreasonable / CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant contends that the complaint was not properly particularised such that he could not know the specific offence alleged against him – where the absence of specificity is said to have hindered the appellant’s ability to mount a meaningful defence – where the appellant contends he was not afforded a fair trial – whether there has been a miscarriage of justice occasioned by the absence of particularity in the complaint / CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant contends there has been a miscarriage of justice by the failure of his legal representatives to ascertain, by interviewing and obtaining a statement from the complainant’s mother, certain evidence which it is suggested the mother would have given had a statement been sought and put it in cross-examination to the complainant and the mother – where the appellant seeks to rely on additional material – where four witnesses were called and examined at the hearing of the appeal – where the mother had given two police statements – where the mother was otherwise uncooperative with the police – where the appellant contends that the new evidence of the mother would have sufficiently aided his defence – whether this Court should receive the additional evidence – whether the conduct of the appellant’s legal representatives constitutes a material irregularity or error – whether the conduct of the appellant’s legal representatives gives rise to a miscarriage of justice / Criminal Code (Qld), s 229B, s 668E(1) / Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20, applied / Huggins v Western Australia [2018] WASCA 61, applied / M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied / MDP v The King (2025) 99 ALJR 969; (2025) 423 ALR 204; [2025] HCA 24, applied / Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9, applied / Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29, applied / R v CAZ [2012] 1 Qd R 440; [2011] QCA 231, applied / R v S [2000] 1 Qd R 445; [1998] QCA 271, cited / R v Smith; R v Sagar [2025] QCA 130, applied / R v ZT (2025) 281 CLR 137; [2025] HCA 9, applied / TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, applied
COUNSEL: A J Kimmins for the appellant / C M Cook for the respondent
SOLICITORS: Hakim and Associates for the appellant / Director of Public Prosecutions (Queensland) for the respondent
BOND JA: I agree with the reasons for judgment of Doyle JA and with the orders proposed by his Honour.
BRADLEY JA: I agree with Doyle JA.
DOYLE JA: This is an appeal from the conviction, after a two day trial, of the appellant on one count (Count 1) of maintaining an unlawful sexual relationship with a child, the offence being a domestic violence offence. On 26 February 2025, the primary judge sentenced the appellant to 3 years’ and 6 months’ imprisonment.
The appellant contends that the verdict ought to be set aside for various reasons which appear in the notice of appeal as supplemented by a new ground identified in the appellant’s written submissions.1 The respondent did not oppose leave being granted to rely on the new ground and that leave was granted on the hearing of this appeal.
Accordingly, the grounds of appeal then became:That the verdict was unreasonable and unable to be supported by the evidence;There was a miscarriage of justice occasioned by the absence of particularity in the complaint; andThere was a miscarriage of justice occasioned by the failure of the appellant’s legal representatives to properly investigate the evidence of the complainant’s mother and present it at the trial.
During the hearing of the appeal the last of these grounds was amended (with leave) to read that “a miscarriage of justice was occasioned by the failure of the appellant’s legal representatives to ascertain by interviewing and obtaining a statement from [the mother] the material identified in paragraphs 11, 12, 13, 14, and 17 of the Affidavit of [the mother] (affirmed 15 October 2025), and then to put that material to the complainant and [the mother].”
To make good this last ground of appeal, the appellant sought to adduce certain additional evidence on the hearing of the appeal. If the Court acceded to that, the respondent sought also to rely on additional material all of which is discussed below.
For the reasons below, in my view none of the grounds is made out and the appeal ought to be dismissed.
Background
The appellant was at the time in a de facto relationship with the mother of the complainant. They, and the complainant’s younger brother, lived successively at two properties; one referred to as the House and the other referred to as the Farm.
The indictment initially presented on 9 November 2023 charged the appellant with 10 Counts. Count 1 was that between 11 December 2020 and 12 December 2022 at [a location] and elsewhere in the State of Queensland, the appellant being an adult, maintained an unlawful sexual relationship with the complainant, a child. She was in that period aged between 12 and 14.
The other nine Counts (all of them also domestic violence offences) related to specific unlawful and indecent dealings by the appellant with the complainant, one count of rape and one of procuring the commission of an indecent act by the complainant on the appellant, on dates or in various periods that coincided with or were captured within the period the subject of Count 1.
At the commencement of the trial in the District Court at Rockhampton, the Crown determined not to proceed in respect of Counts 2 to 10. This occurred in front of the jury. The trial judge then made an order discharging the appellant in respect of those Counts.
Count 1 was particularised as the appellant:Touching the complainant’s breast/s;Touching the complainant’s bottom;Touching the complainant’s vagina;Penetrating the complainant’s vagina with his finger/s; andProcuring the complainant to touch his penis.
The jury was given a copy of these particulars.
The appellant did not give or call evidence at trial.
Ground 1- Unsafe and Unsatisfactory Verdict
Pursuant to s 668E(1) of the Criminal Code, 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.”
An appellate court must undertake an independent assessment of the sufficiency and quality of the whole of the evidence to determine, as a question of fact, whether the verdict of the jury is unreasonable.2 In answering this 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’.”3 Importantly, that assessment is undertaken in a context in which an appeal is as much an adversarial process as the criminal trial from which the appeal is brought, with the result that:“it is for the parties to identify the evidence that the appellate court must review and assess and the features of that evidence that support their respective cases on appeal;”4“the appellate court does not determine the grounds of appeal by simply reconsidering the parties' respective cases at the trial;”5 and“it is for the parties to place all evidentiary material and submissions before the appellate court which they consider relevant to the discharge of the court's function and it is for the parties to identify and address the aspects of the evidence adduced at the trial that warrant the conclusion that the verdict was either unreasonable or not.”6
In answering the question whether the verdict is reasonable, 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’.”7
The jury’s advantages include:“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;”8 and“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…”.
Complainant’s Evidence at Trial
The complainant was interviewed by the police and gave a recorded statement on 15 December 2022. Her evidence in the trial was pre-recorded before Judge Dearden on 4 October 2024 and in that pre-recorded evidence the complainant verified the accuracy of what was set out in the police statement.
In the police statement the complainant gave evidence of:Occasions when the appellant touched her breasts, including touching and manipulating her nipples;14 Occasions when the appellant put his hands down the complainant’s pants trying to and ultimately touching her vagina;15The appellant inserting his finger in her vagina;16Occasions when he would “smack [her] butt”;17 andThe appellant forcibly moving her hand to touch his penis (through his underpants) and to rub him.18
This evidence, if accepted, was sufficient to sustain Count 1. I shall return to some aspects of this evidence below.
She also prepared drawings showing the layout of the House and the accommodation at the Farm. They were tendered as were photos of the latter. The accommodation at the Farm was a shipping container (and thus there was little space between the beds used by the appellant and the mother, that used by the complainant and that used by her younger brother).
The complainant was cross-examined during the pre-recording of her evidence. For convenience I shall deal with the evidence and the cross-examination in categories that broadly correspond to the nature of the sexual contact referred to, before turning to some other topics arising from the evidence.
Touching Breasts
The complainant’s evidence in the police statement was of an occasion while she, the appellant and the mother were watching a movie, when the appellant touched her breasts.19 She said on this occasion he was touching her breasts “trying to squeeze it and like touch the nipple.”20 While the mother was present “she was behind him” and “he was trying to do it without her seeing.”21 She continued that “[i]t was under the blanket so she wouldn’t have seen it”.22 Her evidence was that this conduct was repeated for a while and later said it happened “[o]ver and over again.”23
She rejected the suggestion to her that the appellant had not touched her breasts in a sexual way.24
In cross-examination she explained that the first of those referred to occasions took place in the lounge room at the House.25 Her mother was in the room on the couch with the appellant and the complainant. The complainant explained that her mother was not sitting close to her on the couch. The complainant and the appellant were under separate blankets.26 Defence counsel put to the complainant that the appellant would have had to stick his arms out from under his blanket and reach under the complainant’s blanket to touch the complainant’s breast while her mother was sitting on the other end of the couch, to which the complainant responded “Yeah”.27 While not explicitly stated in the appellant’s written submissions, it is inferred that the appellant urges that this is so unlikely that it casts real doubt on the complainant’s evidence.
This was a matter for the jury to assess and decide.
Tickling Episodes
There was some evidence of pillow fights in which the appellant participated where the occasion may have been used to touch the complainant’s breast.
In her police statement, the complainant referred to an occasion when Friend One was at her house when such a pillow fight broke out also involving the complainant’s brother. When the appellant also became involved, the complainant said “[o]nce again he was just trying to like get his chance and touch our breasts …on top of our [clothes].”28
In her police statement she also said that the same kind of thing happened with another of her friends (Friend Two).29
When cross-examined as to the first of these occasions, the complainant accepted that the appellant did not try to do anything inappropriate to her at that stage but stated that he tried to touch Friend One.30 When further questioned about what she told police, the complainant could not remember whether the appellant tried to touch her during this specific incident.31
As to the second occasion (that involving Friend Two) in cross-examination the complainant asserted that she observed the appellant grabbing Friend Two’s breasts but also accepted that on that occasion the appellant was not trying to touch her breasts at that time.32
It can be accepted that this is not evidence which supports Count 1. It may however bear on the complainant’s reliability. There is a possible inconsistency with her police statement. That statement refers to the appellant trying to get “his chance and touch our breasts”, which might be understood as the complainant suggesting the appellant in fact touched her breasts during those pillow fights. On the other hand, it could be read as no more than her contending that while he touched her breasts on other occasions, he used the pillow fights as a chance to touch her friends’ breasts in a like manner. It provides a poor foundation for a general challenge to the complainant’s credit or reliability.
Touching Vagina
In the police statement the complainant refers to occasions where the appellant touched her vagina. She referred to this both generally but also as to some specific occasions. As to the latter, she referred to “one night I fell asleep on their bed… then I woke up and his hand was down my pants and he was trying to put his finger in my vagina and he was saying does it feel good.”33 The first occasion was at the House.34 In her police statement the complainant described this incident as occurring while she and the appellant “were still watching a movie.”35 They were “under the blankets and [the mother] didn’t know.”36 The incident took place in the appellant and the mother’s bedroom.37 But inconsistently when asked about this occasion she referred to her mother having “left the shipping container to... get water or something.”38 She continued that he was rubbing her vagina and touched it.39 Specifically she referred to his having digitally penetrated her.40
Under cross-examination the complainant rejected that the appellant had not touched her vagina with his fingers.41 When it was suggested to her that her statement to the police that this had occurred at the House was wrong because she also spoke of her mother leaving the shipping container to get water, the complainant responded that it occurred at both places, the House and the Farm.42
As to a time the appellant tried to put his hand on the complainant’s vagina, the complainant’s evidence was the appellant “forcefully put [his hand] in [her pants] and… tried… rubbing [her vagina].”43 He touched around the top of her vagina and put his finger inside her vagina. In respect of the latter, the complainant explained that the appellant held her down so she could not move and forcefully put his hands in and then tried “sticking his finger… inside.” As to whether the appellant’s fingers were ever inside of the complainant’s vagina, the complainant clarified that the appellant “sort of did it and then [she]… got out of his grip.” She had earlier stated that “he couldn’t exactly do it”, being a reference to the appellant rubbing her vagina, as she had moved over and pulled back from him. The mother came back two minutes later. The complainant got up and went to her own room.
Touching her bottom
Touching Penis
In her police statement the gravamen of the complainant’s evidence was of occasions when the appellant grabbed the complainant’s wrist and forced her to touch his penis on the outside of his clothing.56 In cross-examination it was said that this occurred when they were all on the appellant and the mother’s bed watching a movie both at the House and then the Farm.57 The same credit issue arises in respect of this as arose for the evidence as to his touching her vagina in the presence of the mother and potential inconsistency with her statement to the police, as discussed above.
On an occasion at the House, the appellant grabbed the complainant’s left hand and forced her to touch his penis.58 They were in bed watching a movie.59 The mother was sleeping behind them.60 All three were under the blankets.61
On an occasion at the Farm, the mother had gone out to get water outside of the shipping container.62 This occurred on the same night that the appellant touched the complainant’s vagina and breasts.63 It was on this occasion that the appellant said to the complainant words to the effect of “touch it, play with it, it’s fine.”64 This happened during and after the appellant touched the complainant’s vagina.65 He grabbed her right wrist “really hard.”66
The complainant stated that the appellant forced her to stroke his penis and his underwear, the appellant being the one to move her hand.67
Whether to accept her evidence was a matter for the jury to assess and decide.
Assertion of Invention
The complainant was questioned about her conversations with her school friend, Friend One, who had told the complainant that one of her mother’s ex-boyfriends had touched her on her breasts and another of her mother’s ex-boyfriends had touched her vagina while she was sleeping.
There is a degree of uncertainty about when the complainant was told by Friend One of her own experiences.
Friend One stated in cross-examination that she told the complainant about these incidents on occasions that she had been at the complainant’s house.68
The complainant when cross-examined agreed that Friend One had told her about one of her mother’s boyfriends touching her breasts,69 but she did not say and was not asked when this conversation occurred. As to another incident, when one of Friend One’s mother’s ex-boyfriends touched Friend One’s vagina while she was sleeping, the complainant stated she had “only heard parts of it.”70 Again, she did not say and was not asked when this conversation took place.
Later in cross-examination it was put to the complainant that she had simply copied what Friend One had recounted to her as a complaint against the appellant. The complainant refuted that suggestion.71 But in doing so the complainant said that “… like, I haven’t even heard that much about it. I’ve only heard about it in the last couple of months”. When asked if she meant, in the last couple of months (the recording of her evidence being on 4 October 2024) she said “[y]eah, this was after I even talked to them.”72 The “them” is probably a reference to the Police. This was revisited later in the cross-examination where, when asked when Friend One told her of the things that had happened to her, the complainant said “only… in the last couple months, probably more towards the start of the year.”73
The recollections of the complainant and Friend One differ. On the recollection of Friend One, she had told the complainant of what had happened to her before the complainant spoke to the police. But that is not the complainant’s evidence. On her recollection she was only told after she had spoken to the police. If that is accepted then the contentions of the appellant that the complainant had merely transposed what Friend One had told her into an allegation against the appellant and then lied about when Friend One told her, falls away. It was open to the jury to accept the complainant’s evidence especially as no particular attempt was made to challenge her evidence that she only was told by Friend One of her experiences after speaking to the police.
Assertion of Motive to Lie
The complainant did not inform anyone of what had happened until she moved to the Farm. She lived on the Farm for a couple weeks before attending the police station.74
The complainant did not speak to her mother about what happened before reporting it to the police. The complainant told her father the day before attending the police station. She saw her father often, switching between her parents’ respective houses each week. The complainant was scared to tell her parents. She was concerned that if they spoke to the appellant about it, “he would come after [them] or something. Because in the past he’s had really bad anger issues…”.75
It was suggested to her that her allegations arose only because she was not happy about living on the Farm. The complainant rejected that suggestion stating she was happy to be there but did not want to be on the Farm with the appellant. She did not accept that she preferred living at the House.76
Again this was a matter for the jury to assess and decide.
Contention of Lie
After making the complaint, she left the Farm and stayed with her father in town. They also stayed with her auntie in Adelaide for a three week holiday.
After returning from Adelaide, the complainant saw her mother. It was put to the complainant she informed her mother that she (the complainant) wished she had not told the police. When asked about this statement, the complainant said she “felt bad” because she knew how much her mother liked the appellant but did not “want to let it… go because… what he did wasn’t right.”77 The complainant denied the suggestion that she lied to the police.78 An expression of regret is not an admission of having lied; and in any event this was a matter for the jury to assess.
Evidence of the Friends
Evidence was provided by both of the complainant’s friends. It is of marginal relevance.
Friend One was interviewed by police and also gave pre-recorded evidence before Judge Dearden. Her evidence was that she had slept over at the House on more than one occasion.
The police asked Friend One about the pillow, tickle fight occasion. She stated it was not their first sleepover. She gave evidence that the complainant’s brother came in first and then the appellant joined in. She accepted that the appellant tickled her under the armpits on occasions and that the appellant’s palms were around her breast area. Friend One did not think it was an accident because of how many times the appellant touched her breasts.
The appellant came in a second time. He touched her breasts again. When asked whether it was happening more to her or to the complainant, she responded it happened more to the complainant. Friend One could see it happening. This, of course, is at odds with the complainant’s own evidence.
In her police statement, Friend One described the appellant as clingy towards the complainant. By this, she meant that the appellant liked hanging around the complainant all the time and was affectionate to her.79
At the sleepovers, Friend One said that she and the complainant would typically stay up chatting at night. Friend One accepted that on occasions when she slept over at the House, she told the complainant about things that had happened to her with a couple of her mother’s ex-boyfriends. Friend One had told the police about those incidents.
Friend One was asked about these incidents in cross-examination. One of her mother’s ex-boyfriends touched Friend One’s breasts on multiple occasions. This would happen in the context of wrestling, tickling and fooling around. Friend One accepted that it was similar to the incident with the appellant but stated that it was worse with her mother’s ex-boyfriend. Friend One also told police about waking up to the same man touching her vagina. Friend One told the complainant about both incidents when having a sleepover at the House. Her recollection of when she told the complainant is inconsistent with the complainant’s evidence.
Friend Two gave evidence at the trial. She and the complainant met at school. She went to the complainant’s House. On one occasion in October 2022, the complainant and Friend Two were in a room watching YouTube. The appellant was there. He started playfighting and grabbing them. Friend Two gave evidence that the appellant grabbed the complainant inappropriately by trying to touch her breasts with his hand. The appellant tried to play fight with Friend Two. He grabbed her leg but she kicked away. Friend Two kicked the complainant off the bed. The complainant and Friend Two went to the lounge room. The appellant did not follow. The pair left the house.
The Mother
The complainant’s mother gave the following evidence-in-chief.
She stated that the complainant and the appellant “got along fine” and accepted that the appellant was affectionate towards the complainant.81 The complainant would accompany her and the appellant mud racing.82 The complainant chose to take a day off school to do some mechanic work with the appellant.83
The complainant’s mother confirmed that the kids had pillow fights and that there were occasionally tickle fights.84
In respect of the pillow fights, the complainant’s mother confirmed that the appellant sometimes joined in and that she would stand back and watch most of the time.
The complainant’s mother was present during the pillow fight with Friend One. She was “pretty sure” she was present during the pillow right with Friend Two.85
In cross-examination, the complainant’s mother accepted that she took the complainant to the police station following a conversation with the complainant’s father. She stayed with the complainant during the interview. This was the first time the complainant’s mother heard the details of the allegations.86
When asked whether the complainant ever expressed that she was afraid of the appellant or indicated this by other actions, the complainant’s mother responded “never” for both questions.87
The complainant’s mother accepted that the complainant elected to stay with her and the appellant during school holidays instead of staying with her father or grandparents.
When asked about her conversation with the complainant when she returned from Adelaide, the complainant’s mother accepted that the complainant told her she regretted going to the police.88
The Father
The complainant’s father gave the following evidence as to what the complainant had told him.89 This is the only preliminary complaint evidence as such.
In December 2022, the complainant was in her father’s care. They attended the complainant’s grandparent’s place for dinner. The complainant’s brother was also in attendance. The complainant then went for a walk with Friend Two. When she returned, the complainant asked to speak with her father alone. The complainant and her father then went for a drive to talk, pulling over around the corner from the complainant’s father’s house. They spoke for around 45 minutes.
During this time, the complainant told her father that the appellant “had been touching her inappropriately”. The complainant’s father could not recall the actual words said but stated that the complainant told him that the appellant started off touching her breasts and later touched her vagina. The complainant also told her father that the appellant “was holding her – he’d wake up and he’d be holding her down, rubbing her, and that he made her touch his penis. It was behind jocks… but it was erect…”.90
In cross-examination, the complainant’s father accepted that he told the police that the complainant told him that, on a number of occasions, “she would wake up during the night with [the appellant] holding her down and rubbing her vagina and boobs”.91
Discussion
The complainant’s evidence establishes Count 1. It may be accepted that it is not always precise or fully aligned. But she is a young person recalling events some two or more years earlier when she was 12 or 14 years of age. The jury had occasion to view her giving the pre-recorded evidence and to consider it collectively to determine whether it was to be accepted as credible and reliable. In my view it was open to them to accept her evidence as such. The features identified by the appellant as revealing her lack of reliability or credibility do not in my view do so. In particular they are not such as making full allowance for the advantages of the jury and its role in our justice system, to lead me to conclude that there is a significant possibility that an innocent person has been convicted.
There is some suggestion that the appellant’s conduct was unlikely to have occurred in the presence of the mother or when his arms would be visible outside the blanket. Similarly, there is some suggestion of inconsistencies between the complainant’s oral evidence and her police statement (as to the number or location of certain events) as well as to when she was told by Friend One of her own experiences. Her recollection and those of Friends One and Two differ as to who was touched during the tickling episodes.
All of these had to be assessed by the jury taking into account the clarity with which the complainant otherwise asserted she had been touched in the sexual ways particularised, and her rejection of suggestions this did not happen and that she was lying. Having reviewed the evidence I do not conclude the verdict of the jury is unreasonable. As mentioned above, it is the jury which is the body entrusted with the primary responsibility of determining guilt or innocence and has done so with the “benefit of having seen and heard the witnesses.”92
This ground of appeal fails.
Ground 2: Particularity of the Complaint
The appellant contends that the particulars, albeit descriptive of certain conduct, were “largely devoid of substance”.93 In this vein, it is said the appellant could not know the specific offence alleged against him, thereby hindering his ability to mount a meaningful defence.
It is well established that an accused “is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge”.94 This must, however, be understood in the context of the nature of the charge.95
Section 229B of the Criminal Code creates the offence the subject of Count 1 of maintaining an unlawful sexual relationship with a child under 16. By subsection (2) it is provided that “[a]n unlawful sexual relationship is a relationship that involves more than 1 unlawful sexual act over any period.” Then section 229B(4)(a)-(b) of the Criminal Code provides:
“(4) … in relation to the unlawful sexual acts involved in an unlawful sexual relationship—
the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and
the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence…”
This reflects the “legislative assumption” (which is consistent with experience) that children who are victims of acts to which s 229B applies are often unable “to recall sufficient details of the specific offences committed in the course of the relationship.”96
This is not a case where the appellant has been “given so little information about the charge as to render it impractical properly to prepare a defence.”97
The terms of Count 1 identify the nature of the offence alleged. The specification of a date range for the maintenance of the relationship is unobjectionable (and a natural feature of a charge of maintaining a relationship of the kind alleged). The particulars identify the actions said to the sexual acts over the period. Given the terms of s 229B(4) the particulars cannot be said to be deficient merely because more precise details of or dates for each such act cannot be given.
As pointed out by the respondent, no application was made under s 590AA of the Criminal Code for further and better particulars which suggests that the appellant or at least those advising him, knew what was alleged against him.98 It is no answer to this to point to the indictment then including Counts 2 to 10 because, as mentioned, they do not themselves provide much in the way of additional particularisation of the acts complained of so as to arguably supplement the details provided to the appellant of the case he had to meet.
Not Proceeding with Counts 2 to 10
The Crown’s decision not to proceed with Counts 2 to 10, some 12 months after the indictment had first been presented, is said to have “further hindered the [appellant’s] ability to mount a defence”, with the corollary that the appellant was not afforded a fair trial.99
By that time, the complainant and Friend One had been cross-examined. The appellant thus urges that in circumstances where the complainant’s evidence was preeminent, “the trial had largely taken its final form”.100 In this respect, the appellant submits that the belated decision on the part of the Crown reduced the particularity of Count 1.101 How this is so, was not explained, nor is it apparent.
The Crown did not provide a reason for discontinuing nine of the counts. As the respondent points out, the appellant’s counsel did not urge there was any “significant disadvantage” in the discontinuance of those counts.102 Further, as already mentioned, the presence or absence of counts 2 to 10 does not in my view add to or detract from the level of particularisation of the case the appellant had to meet.
Finally, some issue is taken with the decision to not proceed with these counts having been revealed in front of the jury. Just what follows from that is not made clear. But the primary judge gave a direction in respect of the discontinued counts. In his summing up, his Honour stated to the jury:
“… your consideration of each of those charges is no longer before you and has no continuing relevance to your consideration of the case. You must not speculate about that.”103
Ground 3: Failure to Investigate and Put Evidence of the Mother
This ground falls within the third limb of s 668E(1) of the Criminal Code, being a “catch-all provision”,104 which requires this Court to allow an appeal against conviction if it is of the opinion “that on any ground whatsoever there was a miscarriage of justice.”
This ground asserts there was a miscarriage of justice occasioned by the failure of the appellant’s legal representatives to ascertain, by interviewing and obtaining a statement from the mother, the material identified in specific paragraphs of her affidavit, and then put it to each of the complainant and the mother when they gave evidence.
The essential basis of this ground of appeal is that the mother would have given such a statement to the lawyers representing the appellant which could and should have been used then to cross-examine the complainant and in turn the mother. It is submitted that the evidence it is said the mother could then have given would have sufficiently aided the appellant such that the absence of it means there has been a miscarriage of justice.
To make out this ground the appellant seeks to rely on additional material.
The Test of Miscarriage of Justice
In circumstances where “counsel fails to… elicit evidence in cross-examination… it has been customary to focus on the competence of defence counsel, it being said that there must be ‘flagrant incompetence’, an ‘egregious error’, ‘extreme conduct’ or ‘significant fault’.”105
Although such labels are frequently ascribed to this question, the determination does not depend on defining the competence of the appellant’s legal representatives according to a certain description.106 Nor does it turn upon a finding that the conduct was irregular, negligent, contrary to instructions or erroneous.107
The third limb of s 668E, by the terms “on any other ground”, does not import a requirement to demonstrate culpable error by the lawyers. The Court examines “the objective features of the trial process.”108 In Nudd v The Queen (2006) 80 ALJR 614, Gleeson CJ observed at [10]:
“A court of criminal appeal is an unsatisfactory forum for assessing the performance of trial counsel, and appellate courts, recognising that difficulty, seek to avoid such assessment unless it is unavoidable.”
An assessment of counsel’s conduct of a trial must not “distract attention from” the question presented under s 668E (1) of the Criminal Code.109 The ultimate question is whether, objectively viewed, there has been a miscarriage of justice.110
But there is no miscarriage of justice merely because it is later said something better or different could have been done at the trial. Counsel in the adversarial system have a wide discretion in conducting the trial. The appellant confronts a heavy burden of establishing that the conduct of his legal representatives was an error that occasioned a miscarriage of justice.111
In TKWJ v The Queen (2002) 212 CLR 124 at [16] Gleeson CJ stated:112
“It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. In the present case, the decision not to adduce character evidence was made for an obvious reason: to avoid the risk that the prosecution might lead evidence from K.”
“Where decisions taken by counsel contribute to a defect or irregularity in the trial, the tendency is not to inquire into counsel’s conduct, as such, but, rather, to inquire whether there has been a miscarriage of justice, or, if the proviso to the criminal appeal provisions is engaged, whether ‘no substantial miscarriage of justice has actually occurred’. In that exercise, the question whether the course taken by counsel is explicable on a basis that has or could have resulted in a forensic advantage is a relevant, but not necessarily a decisive, consideration.
The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question ‘deprived the accused of a chance of acquittal that was fairly open’. The word ‘fairly’ should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open.”
“No less importantly, however, it follows from the characteristics of a criminal trial which I have identified that, when it is said that a failure to call evidence which was available to the defence at trial has led to a miscarriage of justice, the question presented to an appellate court requires an objective inquiry, not an inquiry into the subjective thought processes of those who appeared for, or advised, the accused at trial. The relevant question is not: why did counsel not lead the evidence, or was counsel competent or incompetent? It is: could there be any reasonable explanation for not calling the evidence?
If there could not be any such explanation, there may have been a miscarriage of justice. It would then be necessary to go on to ask whether the jury would have been likely to entertain a reasonable doubt about guilt if the evidence had been led. If, however, there could be a reasonable explanation for not calling the evidence, that will be the end of the matter. It is not to the point then to inquire whether counsel did or did not think about the point, or acted competently or incompetently, even though the conclusion that there could be no reasonable explanation for the course followed at trial would seem to entail the conclusion that counsel did not act competently.
To hold that the inquiry is not an objective inquiry of the kind I have described would require an appellate court to apply inquisitorial methods and standards in determining an appeal from what, at trial, has been an accusatorial and adversarial process. It would require the appellate court to examine whether, on all the material available, a jury would have been likely to entertain a doubt. That is a very different process from the process undertaken at trial which is predicated upon the parties choosing the field for debate and (subject to the obligations of the prosecution) the evidence that is to be led. The principles which inform the two processes are so radically different that they cannot be applied at successive stages of the judicial process. If they are to be merged in some way, that must occur throughout the system, not by applying one set of principles at trial and another, contrary, set of principles on appeal.”
The Fresh Evidence
The first of the affidavits relied on by the appellant was an affidavit of Dakin Mahony the current solicitor for the appellant, filed 16 September 2025. This sets out instructions he had received as to what passed between the appellant and his trial representatives as to the capacity of his ‘wife’ (a reference to the mother) to give evidence that would “greatly assist his defence” and their refusal to speak to her because to do so would involve a “conflict of interest.” The contention that the lawyers claimed not to be able to talk to the mother because of a conflict of interest was not made out on the evidence as it emerged at the hearing of the appeal.
The second was an affidavit by the appellant filed 3 February 2026 which contradicts the evidence given by his former solicitor (Mr Cagney). Mr Cagney swears that the appellant told him the mother would discredit the complainant but denied that his instructions were that the mother “had any specific evidence that would” do so: at [46]. Relevantly the appellant states:
“6. In relation to paragraph 46 of the said affidavit, I deny this. I say that I did give Mr Cagney details of what [the mother] would have seen, of what she would say about whether the complainant slept in our bed, about what she could say in relation to the alleged tickle fights, etc. And I remember telling him to speak to [the mother]. My recollection is that he had her contact details.”
The third is an affidavit of the mother filed 15 October 2025. I will set out later in these reasons the terms of that affidavit and her cross-examination evidence in this appeal. Suffice for present purposes to note that it contains matters not dealt with in the second statement she had given to the police.
In response to the appellant’s application and in anticipation of leave being granted to the appellant to rely on new material the respondent obtained and filed material comprising:An affidavit of counsel who represented the appellant at the trial, filed 31 October 2025;An affidavit by Grant Cagney, the former solicitor for the appellant, filed 31 October 2025; andAn affidavit of Samantha Wilson filed 31 October 2025 which exhibited certain material available to the Crown at the trial.
Mr Cagney had represented the appellant not only in relation to the subject charges, including obtaining bail, but also a domestic violent order which had been obtained against him seemingly by the police. In the DVO proceedings the mother was represented by her own lawyers. The terms of the DVO precluded contact by the appellant with the mother. Mr Cagney, acting for the appellant, was successful in having it discharged and then subsequently in having the appellant’s bail conditions varied to enable him to contact the mother. Before the trial they had resumed living together.
The police had experienced difficulty in contacting and securing a complete statement from the mother. The police concluded she was uncooperative.114 On appeal the mother was cross-examined on her affidavit and it is fair to say she said she did not feel comfortable with the police because of the securing of the DVO (which she says was not at her request) and also because of an apprehension that the police questions may prejudice her in some way concerning her care for and custody of the complainant.115
In the end the police obtained two signed statements from the mother. The first is dated 28 February 2023. It is short and relevantly records that the mother took the complainant to the police where she was interviewed and also that up until then “[she] had not heard this information from [the complainant] until [the complainant] was speaking with police”: [9]. The second, and more complete statement, is dated 28 April 2024. The mother made contact with the police and provided this statement after Mr Cagney had urged the appellant to tell her that she should do so. This was because Mr Cagney had been told the mother’s evidence would favour the appellant.
Otherwise it can be accepted on the respondent’s material that those representing the appellant at the trial:discussed with the prosecutor and secured the Crown’s agreement to call the mother in the prosecution’s case;in this way (and other ways such as getting the prosecution to tender photos of the Farm) gave effect to the appellant’s instruction to preserve his position given that he did not intend to himself give or (at least possibly) call evidence for good reasons;did not separately interview the mother to obtain a statement of what she might say in evidence when called by the prosecutor or to assist in her possible cross-examination. However, this was not because of any perceived ‘conflict of interest’ and that is not something which was said by those lawyers;felt it was desirable for the mother to be called by the prosecution, as she could then be cross-examined plus doing so would give Counsel for the appellant the right to address the jury last.
“2. I wish to provide a further statement as I do not believe that what [the complainant] has told police during her interview was the truth.
…
During the time that [the complainant] has known [the appellant], she has never shown or told me that she is scared of him.
…
At no stage have I ever seen [the appellant] touch any child inappropriately during any pillow fights. I am pretty sure that I have been there for all the pillow fights that have happened at [the House].
[The complainant] and I have always had a good relationship. I feel that if something was wrong, [the complainant] would come and tell me about it. Before this matter was reported on the 15th day of December 2022, [the complainant] had not indicated to me that anything was happening in our home with [the appellant].
…
While [the complainant] was away, I had some time to process what [the complainant] had told police and I came to the realisation that [the complainant] had lied to police. The things that [the complainant] said during her interview with police made no sense to me. I had not seen any of the things [the complainant] had said to police happen between her and [the appellant] or anyone else.
When [the complainant] and [her brother] came back from Adelaide, I had a chat with [the complainant] about how their trip was. While we were talking, [the complainant] told me that she regretted talking to the police and she was happy for [the appellant] and I to be in a relationship together. After [the complainant] told me she regretted speaking to police, I was shocked, and this confirmed to me that [the complainant] had lied to the police.
I have tried to speak to [the complainant] and give her the opportunity to come clean, when this has occurred [the complainant’s] body language to me seemed like she wanted to say something, but she thought she might get into trouble for lying. [The complainant] has never openly said to me that she had lied about the allegations against [the appellant].
On the 28th day of April 2024, I have attended the ... Police Station and have provided this statement. At the time of providing this statement, I have no further information to provide about this matter.”
The subject matter of paragraph [17] of the second statement is consistent with things put to the mother in her cross-examination at the trial.120
In summing up, the primary judge stated:121
“The complainant’s mother… gave evidence. She confirmed she is still in a relationship with the [appellant]. She said she did not see anything untoward between her daughter and the [appellant].”
The New Affidavit
In the mother’s affidavit sought to be relied on in this appeal, she sets out what she contends she was willing to tell the solicitors acting for the appellant and would have done so had they sought a statement from her. It is to be inferred that she would have then said the same thing in evidence if cross-examined on specific matters at the trial.
It is convenient to set out much of the content of that affidavit (noting that paras 11, 12, 13, 14, and 17 are the most centrally relevant), which states as follows:
“3. [The appellant] and I spoke about the charges many times and I knew they were false.
It was always my intention to testify at trial.
I remember an occasion prior to the trial when I accompanied [the appellant] to his lawyer’s office to speak to him and provide my proposed testimony to contradict the false version offered by the complainant.
I remember at some stage I was told by someone ‘The lawyer has told me that he cannot speak to you because there is a conflict of interest.’
Later [the appellant] walked out and met me and we left.
It was my intention to tell the [appellant’s] lawyers that although there had been pillow fights between the girls, I saw nothing untoward.
Further I wanted to tell them that [the appellant] is very ticklish and would never involve himself in a situation where he was going to be tickled. He would, in fact, avoid such a situation.
Further I wanted to tell them that I was a very light sleeper and that every time [the appellant] got up at night while he was in our bed, I would wake up.
Further I wanted to tell them that the incident at our home where he allegedly put his fingers in the complainant's vagina while she was on our bed couldn’t have occurred because if she was on our bed and appeared tired, I would always send her to her own bed. She was not allowed to sleep on our bed. She never slept on any bed that [the appellant] and I shared.
Further I wanted to tell them that there was only time I can remember the complainant watched a movie from our bed, and this occurred when she was around 10 years of age, not 13 or 14 years.
Further I wanted to tell them that the only occasion I can remember the complainant being around 10 years of age and under a blanket on our bed watching television, [the appellant was lying under my legs behind her and I lay against the wall behind the bed. His hands and arms, though, were outside the blanket as it stopped under his armpits.
Further I wanted to tell them that I had never seen [the appellant] put his hands on the complainant’s thigh when she was in a car with him driving to [a stated location]. He was driving there in order for him to help a friend of his prepare a car for an auto racing event. I distinctly remember the complainant wanting to go with him and him agreeing on this one occasion.
…
There was never a time that I can remember on a couch watching a movie when we were under the blankets.
…
And I further wanted to tell them that when we lived in a shipping container at [the Farm] we were always within sight of each other given the very small size of our home.”
The New Material Would Not Have Been Given
The Mother’s Evidence
As mentioned, the affidavit contains material that is not in either of the statements she had given to the police. The second of those statements was made at the request of the appellant’s lawyers in order to have her, helpful, version available for the prosecution. Having been with the complainant when the police interviewed her, she was aware of the details of the complaints. It appears from paragraph [3] of her affidavit that she and the appellant had discussed the charges many times. By paragraph [19] of the second statement she verified that she had nothing more material to say. That is at odds with what is now said.
Her explanation in cross-examination for why she was prepared to sign the second statement containing paragraph [19], while (on her current evidence), the statement did not contain other important matters, is unconvincing. She said that paragraph [19] was the truth “at that time.”122 While part of her explanation was a distrust of the police, she also stated that she “wasn’t there to answer questions. [She] was there to give a statement.”123 Putting aside the terms then of paragraph [19] the balance of the second statement accordingly should be accepted as representing the statement she was then truthfully able and willing to give. That is inconsistent with her new affidavit.
Surprisingly, when asked why she refused to answer the police questions as to how often the appellant was at home alone with the complainant or left alone with her, she initially stated “[i]t wasn’t relevant to the information that I was giving at the time”.124 That is despite her appreciation that it would in fact have been relevant to the police, court or jury.125
The police asked her whether there were nights the appellant and complainant watched movies together but she refused to provide any information to the police. In her cross-examination she added “…there’s nothing to give. They didn’t watch movies together. They haven’t for ages.”126 It is difficult to accept that answer because one of the alleged incidents was said to have occurred in just that situation and her ability (if it had been so) to suggest that had not occurred would be important on any view. Moreover, her new affidavit at [13], suggests that broadly contemporaneously with making the statement to the police (that is at the time when she was willing to talk to Mr Cagney) she “wanted to tell” the appellant’s lawyers the very thing she did not tell the police.
The Evidence Concerning the Appellant
The mother’s new affidavit does not fall to be considered in isolation. The appellant has provided an affidavit which (at [6]) asserts that he told Mr Cagney of “details of what [the mother] would have seen, of what she would say about whether the complainant slept in [their] bed, about what she could say in relation to the alleged tickle fights, etc.” Nothing more specific is said.
Mr Cagney’s affidavit exhibits three relevant documents attributable to the appellant.
The first is a handwritten note by the appellant after he had viewed the recording of the complainant’s police interview. Relevantly this states:The complainant has “not slept in [the mother’s] & my room for a couple years as I wanted to put a stop & the last couple of times made sure [the mother] was between us.” No precise date is given for this.The complainant is “not a victim, she had tried moving my arm to touch her breast once that I stopped & told [the mother] about around the time.”
The second is a signed statement dated 4 October 2024. It is four pages long and has 73 numbered paragraphs. It presents the appellant’s instructions on the facts under a series of headings. It is only necessary to refer to some small parts of this statement, namely:
“[The complainant] sleeping in our bed
[The complainant] had not slept in mine and [the mother’s] bed for a number of years prior to the allegations.
Early on when [the complainant] was younger (say 8-9) she would sometimes sleep in the main bed.
I had actually spoken to [the mother] about this, saying she was getting older and that you wanted her to stop sleeping in your bed now.
The last few times [the complainant] slept in our bed I made sure [the mother] was between me and [the complainant] because I did not feel comfortable with her sleeping in our bed as she was getting older – she was almost high school age.
[The complainant] sitting on my lap
I deny I ever made or got [the complainant] to sit on my lap.
She would however regularly sit on my lap, as well as other peoples laps such as my brother and my father for example.
…
Sleep overs and play fights
We used to have pillow fights at [the House].
We never had any pillow fights at the [Farm].
It was just playing. Someone would throw a pillow at someone and it would start.
I also used to tickle [the complainant] and [her brother] as well. Usually this was on the ribs but probably under their arm pits too.
The children would also be trying to tickle me.
It was a harmless game.
[Friend One] was [the complainant’s] friend. She has had a few sleep overs during our time at [the House].
I do agree there was a time that [Friend One] came over and was involved in a tickle game.
Every time anyone slept over [the mother] was always home.
[The mother] was home during the game I was playing with [Friend One] and [the complainant].
I was not touching the children in any sexual way during this.
…
Allegations
I deny I have ever sexually touched [the complainant] in the way she alleges.
I have never touched her breasts, had her touch my penis, rubbed her legs, put my hand down her pants or inserted a finger into her vagina.”
Some things appear from this statement.First, paragraphs [25]-[28] are broadly consistent with the first of the documents from the appellant to which I have referred. Importantly however, in these paragraphs the appellant identifies that the complainant was almost high school age when she stopped sleeping in the bed he and the mother shared. It is to be noted that the offence is charged to have occurred when the complainant was 12 to 14 years old. For part of those years at least she might be described as almost of high school age.Second, paragraphs [38]-[48] do not suggest the appellant would not engage in tickling play at all; quite the reverse.Apart from this and the general denials in paragraphs [72]-[73]:there is no reference to the mother being a light sleeper waking up whenever the appellant got up during the night;his instructions were not that the complainant never had slept on any bed that the appellant and the mother shared;there is no suggestion he and the complainant (and the mother) had not watched movies from their bed at or since the complainant was 10 years old;nor was there any suggestion that the last time the complainant watched television from their bed was when she was around 10 years of age with the appellant’s hands and arms outside the blanket stopping under his armpits.
As mentioned above, the appellant’s affidavit (at [6]) suggests that he told Mr Cagney of the detail of what the mother could say relevant to the charges (the 10 which were then on foot) rather than simply that she would contend the complaints were not true: Cagney [46]. There was no further evidence from the appellant about this at the hearing of the appeal, nor anything directly in oral evidence from Mr Cagney. However, the very nature of this ground of appeal assumes and indeed requires that Mr Cagney was not aware of what the mother would say (as now set out in her affidavit) as it identifies the failure not simply in not putting things to the complainant and the mother, but not having first ascertained them by obtaining a statement from the mother.
If the appellant was aware of what the mother could say and if that was in substance then the same as she now sets out in her affidavit, it is not readily apparent why he was not able to tell his lawyers the very same points in his instructions in the document of 4 October 2024. It is also difficult to reconcile an assertion that he had told the details of the mother’s version to Mr Cagney with his then failing to mention any of these in his statement to Mr Cagney prior to his trial. This is all the more so when he now says that what he told Mr Cagney was that the mother could give evidence that would “greatly” assist his defence. It is hardly likely (if true) to be something omitted from his instructions.
On the present state of the evidence I would not accept that the appellant told Mr Cagney the details of what it is now said the mother could say. His not having done so is a further indicator that the mother had not then said to the appellant the various things she now contends she would have told Mr Cagney if approached. That she had not done so reinforces a conclusion that the appellant has not demonstrated she would have told them to Mr Cagney if approached by him at the time.
Analysis of the Error and Materiality
The above conclusion makes further discussion of this ground of appeal unnecessary. But in the event my view on the threshold issue does not prevail, it remains to consider whether there has been a miscarriage of justice.
The requirement as to the materiality of the impact of the error or the irregularity in the trial has been clarified in Brawn v The King (2025) 99 ALJR 872 at [3], [10]-[16] and MDP v The King (2025) 423 ALR 204 at [3] (Gageler CJ), [9] (Gordon and Steward JJ), [44] (Edelman J), [98] (Gleeson, Jagot and Beech-Jones JJ). In the first of these it was stated (at [10]):
“[The] errors or irregularities [being those that are not fundamental] to constitute a miscarriage of justice, they must be material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to a verdict of guilty that was returned by the jury in the criminal trial that occurred. In this context, ‘could’ is to be understood as meaning ‘having the capacity to’, and ‘realistically’ distinguishes the relevant assessment of the possibility of a different outcome from a possibility that is fanciful or improbable. This threshold must be satisfied by the appellant, but that burden is not onerous. It does not invite an analysis of whether, but for the error, the accused might or might not have been found guilty.”
Not Obtaining a Statement
The Complainant
“Well, what I suggest to you – and now, what that means is essentially what I say is he never, at either house, touched your vagina, did he?---I don’t understand.
He did not at any time – he being [the appellant] touch your vagina with his fingers - - -?--- That - - -
- - - did he?--- - - - would be f – no, he did.
All right. What I’m saying… is that you have made that up?--- That was not true.
He never touched your breasts while watching movies or any other time in a sexual way, did he?---No, that’s false.
Pardon me?--- He did.131
…..
And all this period of time when things – [the appellant] had been doing these things to you, you never mentioned anything to dad?---No.
Is that because they weren’t happening?---No, it’s because I was scared to, because I was worried that if I did tell them and they talked to him about it, that he would come after us or something. Because in the past he’s had really bad anger issues, and - - -
Is he?--- - - - I was really worried what would happen.
Is this like the anger issue you say where he knocked the door off its hinges and came walking out with clenched fists and – yelling and screaming?---Yep.”132
A cross-examiner who was confident that contrary and persuasive evidence could be led (persuasive in the sense of giving rise to some reasonable doubt) might well continue to put to the complainant things inconsistent with her evidence even though doing so will be met with emphatic rejection. The risk, of course, is that it conveys the impression of a reliable witness firmly adhering to her story despite repeated challenges to her recollection or veracity. The assessment of whether to do so would also involve weighing up just how significant the evidence which might then be led could be, and whether the witness to then give that evidence might have his or her own credit damaged by not giving a version entirely the same as that put to the complainant.
Accordingly even if those representing the appellant had obtained a statement to the effect of the relevant paragraphs of the mother’s new affidavit, there could be sound forensic reasons not to put those matters to the complainant or the mother. That turns in part on the significance (or lack of it) of the new material a matter to which I now turn.
The Materiality of the Mother’s New Affidavit
I have already touched upon why viewed objectively acceptance of the mother’s evidence assuming it was given as outlined in her affidavit might be doubtful. She was living with the appellant, and did not believe her daughter. Importantly she would (on the present hypothesis) be giving relevant evidence about details which she had not told the police despite the terms of paragraph 19 of her second statement to the police.
Moreover, the additional matters about which she could (it is said) have given evidence are limited.First, she would say that she was a very light sleeper: [11]. The suggestion that someone would be woken by their partner getting out of bed is not particularly persuasive of the ability of the partner, trying not to be detected, to indecently touch a child in the same bed or location (that is, not requiring the partner to get up or move locations) as the mother without waking her.Second, she offers her view that the occasion when the appellant was said to put his fingers in the complainant’s vagina in their bed could not have happened because the complainant was not permitted to sleep in their bed: [12]. The proposed new evidence would be to the effect that if the mother noticed the complainant starting to fall asleep on the bed, she would tell her to go to her own room. This evidence in fact supports the notion that the complainant was allowed on the bed for some purposes at least. Moreover, the mother could not notice the complainant falling asleep if she (the mother) was already asleep herself. That is the complainant’s evidence.133Third, she could only recall the complainant watching a movie from their bed when she was around 10 years of age, not 13 or 14 years: [13]. However, she does not say that if it had occurred when the complainant was 13 or 14 years old that the mother would nevertheless have remembered it. The relevance of the limits of her recollection is marginal. In any event how this sits with the evidence in paragraph [12] of her affidavit is unclear.Fourth, her evidence that when watching TV on the bed under blankets the appellant’s arms were outside the blankets: [14]. This was put to and seemingly accepted by the complainant at trial. Accordingly this aspect of the mother’s evidence had it been given would add nothing material.Fifth, the complainant expressing regret that she had gone to the police: [17]. She was cross-examined at trial about this and gave in substance this evidence. The regret expressed (and the mother’s evidence of it) was not an admission of lying.
Accepting the relatively low hurdle of materiality which is established in Brawn and MDP, nonetheless, having regard to these matters, and the other evidence I have set out above, I do not believe it is to be concluded objectively that not cross-examining both the complainant and the mother on the limited matters above was likely to have produced anything material such as to amount to an error giving rise potentially to a miscarriage of justice.
Conclusion
At the hearing of the appeal the appellant abandoned the ground previously advanced that the trial judge erred in failing to adequately direct the jury as to the use of evidence of preliminary complaint. ↩
R v ZT (2025) 281 CLR 137 at [11]-[12]; M v The Queen (1994) 181 CLR 487, 494-95. ↩
R v ZT (2025) 281 CLR 137 at [7]; M v The Queen (1994) 181 CLR 487, 493. ↩
R v ZT (2025) 281 CLR 137 at [11]. ↩
R v ZT (2025) 281 CLR 137 at [11]. ↩
R v ZT (2025) 281 CLR 137 at [12]. ↩
R v ZT (2025) 281 CLR 137 at [7]; M v The Queen (1994) 181 CLR 487, 493. ↩
R v ZT (2025) 281 CLR 137 at [9]. ↩
R v ZT (2025) 281 CLR 137 at [10]. ↩
Appellant’s Outline of Submissions at [35]. ↩
R v ZT (2025) 281 CLR 137 at [7]; R v Smith; R v Sagar [2025] QCA 130 at [212]-[213]. ↩
The President of this Court on 13 May 2025 wrote to the President of the Bar Association modifying or augmenting the effect in practice of that Practice Direction as now requiring that the appellant’s written outline of argument set out the relevant evidence (and references) in an annexure of up to 10 pages in addition to the page limit otherwise for the outline.
R
PBU [2026] QCA 32
(1994) 181 CLR 487
(2025) 99 ALJR 969
(2006) 80 ALJR 614
(2025) 281 CLR 137
(2002) 212 CLR 124
(2025) 99 ALJR 872
(2025) 423 ALR 204
(2012) 247 CLR 531
(2025) 99 ALJR 676
(1937) 59 CLR 467
Leave to adduce new evidence on the hearing of the appeal was refused. The appeal was dismissed ([159]).
The verdict of guilt required an acceptance of the complainant’s evidence. The appellant challenges this evidence on the basis that it “was vague, contained discrepancies, displayed inadequacies, and otherwise lacked probative force.”10 No specific inconsistencies or inadequacies are identified in the appellant’s written submissions. This is unacceptable. While this Court must undertake an independent assessment of the sufficiency and quality of the whole of the evidence to determine whether the verdict of the jury is unreasonable, it is not obligated to do so without the appellant identifying the factual features which make the resultant verdict unreasonable. This requires an appellant to do more than merely submit as a conclusion that the evidence is vague, contained discrepancies, displayed inadequacies, and otherwise lacked probative force.11 An appellant, to establish the unsoundness of the verdict, must make some attempt to do so by identifying the evidential foundation for that contention. To facilitate this, Practice Direction 3 of 2013 by paragraph 34(2)(a) required the appellant in the written outline to “… set out, where possible, the particulars given by the prosecution and a summary of all relevant evidence, with appeal book references.”12 This was not done in this appeal.
In support of this ground, the appellant also contends:The complainant had motive to lie, expressing discontent over her new address at the Farm where previously there was no suggested difficulties of the complainant being around the appellant; andA friend (Friend One) had disclosed to the complainant abuse she experienced, the details of which are said to be mirrored in those which the complainant alleged and further that the complainant lied about when this disclosure to her took place.13
The complainant also spoke of a time during which the appellant tried to “get into [her] pants.” They were in the bed under the blankets. The complainant stated that her mother “didn’t know” and “couldn’t see or anything.”50 After that night, the complainant went to a friend’s house.51
Defence counsel asked the complainant about whether there was only one occasion when the appellant tried to put his finger in her vagina. She responded that there were two.52
The complainant maintained that there were “two separate situations”53 one during which the mother was asleep and the other when she was awake, that latter time being when the mother went out to grab some water.54 This should be understood as being at the Farm.
Again whether to accept her evidence was a matter for the jury to assess and decide.
In cross-examination, Friend Two stated that the incident occurred the morning after she slept over at the House. When asked if she ever told the complainant that the appellant touched her breasts, she responded that she did not say that to anyone because the appellant did not try and touch her inappropriately. This, of course, is at odds with the complainant’s own evidence.
Friend Two says that the same day, after the incident, the complainant and Friend Two walked to the complainant’s father’s house. The pair spoke about what happened. Friend Two told the complainant that what happened at the House “looked not right” and asked her if she was okay. The complainant responded that she felt very uncomfortable, that it was not playfighting and that the same thing had happened on the Farm but she was too scared to tell anyone. The complainant did not tell Friend Two what had specifically happened on other occasions. Friend Two told the complainant to report it. The complainant and Friend Two told the complainant’s father and they went to the police station.80
There is a degree of uncertainty about Friend Two’s evidence. She refers to this incident occurring at the House, with the complainant having told her of other incidents having occurred at the Farm. The last location where the complainant lived with the appellant was at the Farm and other evidence suggests that it was whilst she was living at the Farm that the complainant reported her complaints to her father (and not in the presence of Friend Two). The sequence and location of the offending conduct as recalled by the Friend might be doubtful, but that does not impair the ability of the jury to act on the complainant’s evidence as to the core allegations of sexual contact.
As to why Mr Cagney (prior to the complainant giving her evidence or the mother doing so) did not separately obtain a statement from the mother, Mr Cagney’s cross-examination or other material reveals:He was aware that the mother did not believe the complainant’s version and had given the second statement to the police at his suggestion;116He had received from the prosecution both statements given by the mother;117He was of the view that second statement was sufficient;118She had provided that second statement knowing the detail of what the complainant had said to the police, she, the mother, having been with the complainant at the time of her interview by the police.119
The second of the mother’s statements to the police included the following:
In her statement she deliberately omitted things unhelpful to the appellant: that he could sometimes pick the children up from school and take them home while the mother was at work. Her explanation for not including it in the statement is similarly difficult to accept. She said that was because she was not far away (meaning at work).127 It may be that she worked nearby but she cannot have believed that made the fact of her absence irrelevant.
Given that two of the incidents the complainant alleged took place in the presence of the mother when at least for one she may have been asleep, it is difficult to accept that she did not think it relevant, if true, that this could not have happened because she was a “light sleeper”: cf new affidavit at [11]. Given that one incident the complainant alleged took place was when she fell asleep on the bed shared by the appellant and the mother, it is difficult to accept that the mother did not think it relevant, if true, that this could not have happened because she always, if she noticed the complainant falling asleep, made her go to her own bed: cf new affidavit at [12]. Indeed she went on in the same paragraph to say the complainant “never slept on any bed that [the appellant] and I shared.” This was at least an overstatement and she accepted in cross-examination that she was only referring to the period the subject of the charge.128
While not one of the paragraphs directly relevant, the new affidavit recites that the mother wanted to tell the lawyers that the appellant “would never involve himself in a situation where he was going to be tickled”: at [11]. Yet her evidence in cross-examination is inconsistent with this.129 So too was the evidence of the complainant, the two Friends, and indeed the instructions given by the appellant to his lawyers. At least in this respect she was been shown to be willing to misstate the facts in order to advantage the appellant.
Despite the mother saying that she wanted to tell the lawyers the various things in her new affidavit, she did not take the simple course of writing it down and sending it to them.130
The third document is headed “Evidence Instructions” and is signed in two places: once on 24 February 2025 and the other on 25 February 2025 (after closure of the Crown case). I will not dwell on these save that they both record his instructions not to give or call evidence. The first dated section recites the benefits and risks of not giving or calling evidence. The later dated section confirms his instructions after he had heard all of the evidence which had been given by the mother.
If, as he now wishes to suggest, there were relevant matters which he knew the mother could and would say if asked, it is surprising that at no point during the trial did he communicate with his lawyers that they should but had not asked her about those things.
I do not accept the mother’s evidence as reliable for the reasons set out above when considering her evidence and when taken with the context provided by the evidence of and concerning the appellant’s instructions. It is possible she has convinced herself now of her ability and willingness in 2024/25 to provide more helpful evidence for the appellant; or regrets not doing so. Given his conviction both she and he have had time to reflect on what form that might have taken. I do not accept however, that the evidence would in fact have been given in 2024/25 as required to admit this fresh evidence.
This ground of appeal fails.
Appellant’s Outline of Submissions at [36]-[37]. ↩
Complainant’s Police Statement at p 4 lines 12-13, lines 50-55; p 6 line 5, lines 40-60; p 9 line 18; p 11 lines 5-22; p 17 lines 29 -33. ↩
Complainant’s Police Statement at p 4 lines 21-28; p 9 line 22; p 11 lines 55-56; p 13 lines 52-55. ↩
Complainant’s Police Statement at p 15 line 33 to p 6 line 30. ↩
Complainant’s Police Statement at p 13 line 38. ↩
Complainant’s Police Statement at p 12 lines 5-10; p 18 line 20 to p 20 line 44; p 21 line 40. ↩
Complainant’s Police Statement at p 4 lines 52-58. ↩
Complainant’s Police Statement at p 6 lines 1-6. ↩
Complainant’s Police Statement at p 8 lines 46-50. ↩
Complainant’s Police Statement at p 8 line 54. ↩
Complainant’s Police Statement at p 11 line 23. ↩
T1-8 lines 47-48. ↩
T1-13 lines 37-47. ↩
T1-14 line 12. ↩
T1-14 lines 16-18. ↩
Complainant’s Police Statement at p 26 lines 11-13. ↩
Complainant’s Police Statement at p 26 lines 23-37. ↩
T1-20 line 19. ↩
T1-20 lines 31-40. ↩
T1-22 lines 22-33. ↩
Complainant’s Police Statement at p 4 lines 21-28. ↩
Complainant’s Police Statement at p 13 line 14. ↩
Complainant’s Police Statement at p 13 lines 18-20. ↩
Complainant’s Police Statement at p 13 lines 18-20. ↩
T1-5 line 49. ↩
Complainant’s Police Statement at p 13 lines 42-47. ↩
Complainant’s Police Statement at p 13 lines 52-54 and p 15 lines 6-41. ↩
Complainant’s Police Statement at p 16 lines 18-39. ↩
T1-8 lines 39-45. ↩
T1-8 lines 19-34. ↩
Complainant’s Police Statement at p 15 lines 1-8. ↩
Complainant’s Police Statement at p 15 lines 35-53. ↩
Complainant’s Police Statement at p 16 lines 12-23. ↩
Complainant’s Police Statement at p 16 lines 25-29. ↩
Complainant’s Police Statement at p 15 lines 14-16. ↩
Complainant’s Police Statement at p 15 lines 20-21. ↩
Complainant’s Police Statement at p 17 lines 13-16. ↩
Complainant’s Police Statement at p 9 lines 30-45. ↩
Complainant’s Police Statement at p 10 lines 15-17. ↩
T1-14 line 49 to T1-15 line 2. ↩
T1-15 lines 46-47. ↩
T-1-15 line 36 to T-16 line 1. ↩
Complainant’s Police Statement at p 13 line 39. ↩
Complainant’s Police Statement at p 12 lines 2-10; p 18 line 20; p 20 line 44. ↩
T 1-14 line 26 to T-15 line 2. ↩
Complainant’s Police Statement at p 20 lines 28-29. ↩
T1-14 lines 20-21. ↩
T1-14 lines 32-38. ↩
T1-14 line 44. ↩
T-16 lines 19 to 24. ↩
Complainant’s Police Statement at p 18 lines 45-59. ↩
Complainant’s Police Statement at p 21 lines 14-17; T-16 lines 36-39. ↩
Complainant’s Police Statement at p 19 lines 15-19. ↩
T-19 lines 55-56; T-20 line 9. ↩
Complainant’s Police Statement at p 20 lines 35-45. ↩
T1-27 lines 21-25; T1-35 lines 1-14. ↩
T1-9 lines 25-32. ↩
T1-9 lines 34-35. ↩
T1-9 lines 37-41; T1-16 line 45 to T1-17 line 10. ↩
T1-17 lines 4-10. ↩
T1-21 lines 35-41. ↩
T-11 lines 5-6. ↩
T1-18 lines 2-4. ↩
T1-11 lines 8-14. ↩
T1-11 lines 45-47. ↩
T-11 line 49 to T-12 line 1. ↩
T1-29 lines 8-9. ↩
T1-29 lines 26-27. ↩
T2-11 lines 42-48. ↩
T2-12 lines 5-8. ↩
T2-12 lines 10-11. ↩
T2-12 lines 13-41. ↩
T2-12 lines 38-39. ↩
T2-13 lines 11-15. ↩
T2-13 lines 28-31. ↩
T2-15 line 13. ↩
T2-5 to T2-7. ↩
T2-6 lines 26-28. ↩
T2-7 lines 25-36. ↩
R v ZT (2025) 99 ALJR 676 at [10]; M v The Queen (1994) 181 CLR 487 at 493-4. ↩
Appellant’s Outline of Submissions at [23]. ↩
Patel v The Queen (2012) 247 CLR 531 at 578 (Heydon J) citing Johnson v Miller (1937) 59 CLR 467 at 489 (Dixon J). ↩
R v S [2000] 1 Qd R 445 at [22]-[27]. ↩
R v CAZ [2012] 1 Qd R 440 at [45]. ↩
R v CAZ [2012] 1 Qd R 440 at [51]. ↩
Respondent’s Outline of Submissions at [4.4]. ↩
Appellant’s Outline of Submissions at [29]. ↩
Appellant’s Outline of Submissions at [27]. ↩
Appellant’s Outline of Submissions at [28]. ↩
Respondent’s Outline of Submissions at [4.6]; T1-6 lines 14-15. ↩
T1-11 lines 1-3. ↩
MDP v The King (2025) 423 ALR 204 at [42] (Edelman J). ↩
TKWJ v The Queen (2002) 212 CLR 124 at 133-4 [29] (citations omitted). ↩
Huggins v Western Australia [2018] WASCA 61 at [378]; see also Nudd v The Queen (2006) 80 ALJR 614 at [8], [24], [27]. ↩
TKWJ at [74], [79]. ↩
Nudd v The Queen (2006) 80 ALJR 614 at [10]. ↩
Nudd v The Queen (2006) 80 ALJR 614 at [24] (Gummow and Hayne JJ). ↩
TKWJ v The Queen (2002) 212 CLR 124 at [27]-[28] (Gaudron J, with whom Gummow J agreed), [107]-[108] (Hayne J, with whom Gummow J also agreed); Nudd v The Queen (2006) 80 ALJR 614 at [12] (Gleeson CJ), [24]-[27] (Gummow and Hayne JJ) [157]-[158] (Callinan and Heydon JJ). ↩
TKWJ v The Queen (2002) 212 CLR 124 at [74] (McHugh J). ↩
See to like effect per McHugh J at [74], [77]. ↩
Gummow J agreeing at [101]; and Hayne J agreeing at [102]. Citations omitted. ↩
Appeal transcript T1-50 lines 1-7. ↩
Appeal transcript T1-27 lines 40-45; T1-29 lines 35-37; T-31 lines 18-20; T1-33 lines 10-14; T-34 lines 21-25. ↩
Affidavit of G A Cagney at [31]; Appeal transcript T1-46 lines 1-11; T1-49 lines 38-40. See also in cross-examination of the appellant’s trial counsel at appeal transcript T1-60 lines 1-7. ↩
Appeal transcript T1-49 lines 35-36. ↩
Appeal transcript T1-50 lines 4-7. ↩
Appeal transcript T1-46 lines 4-11. See also in the cross-examination of the appellant’s trial counsel at appeal transcript T1-60 lines 16-20. ↩
T2-15 lines 5-13. ↩
T1-4 lines 22-24. ↩
Appeal transcript T1-32 lines 24-26. ↩
Appeal transcript T1-32 lines 38-42. ↩
Appeal transcript T1-33 lines 1-4. ↩
Appeal transcript T1-33 lines 6-7. ↩
Appeal transcript T1-33 lines 24-29. ↩
Appeal transcript T1-33 lines 3-35. ↩
Appeal transcript T1-35 line 43 to T-36 line 5. ↩
Appeal transcript T1-35 lines 24-41. ↩
Appeal transcript T1-36 lines 36-47. ↩
T1-8 line 36 to T1-9 line 1. ↩
T1-17 line 48 to T1-18 line 9. ↩
T1-14 line 49 to T1-15 line 10; T1-15 line 49 to T1-16 line 1. ↩