SUPREME COURT OF QUEENSLAND

CITATION: R v CAU [2010] QCA 46

PARTIES: R v CAU (appellant)

FILE NO/S: CA No 133 of 2009 DC No 171 of 2009

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction & Sentence

ORIGINATING COURT: District Court at Ipswich

DELIVERED ON: 12 March 2010

DELIVERED AT: Brisbane

HEARING DATE: 3 February 2010

JUDGES: McMurdo P, Fraser JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: 1. The appeal against conviction is allowed. 2. The convictions on counts 1, 3, 9 and 11 are set aside. 3. A re-trial is ordered on counts 1, 3, 9 and 11.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – appellant pleaded not guilty to three counts of indecent treatment of a child, three counts of incest, and five counts of sexual assault – appellant was the complainant's brother – appellant was convicted in respect of two counts of indecent treatment of a child under 16 and two counts of incest – late complaint – complainant's evidence inconsistent – whether verdicts are unreasonable and amount to a miscarriage of justice

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – GENERALLY – psychologist gave unchallenged evidence – whether evidence was outside the experience and knowledge of the jury – whether the trial judge should have directed the jury that they were not required to accept the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OF POINTS NOT RAISED IN COURT

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BELOW – MISDIRECTION OR NON-DIRECTION – prosecution withdrew three counts during trial– whether trial judge erred in failing to direct the jury regarding the use of evidence of those counts

CRIMINAL LAW – EVIDENCE – COMPLAINTS – GENERALLY – the complainant made preliminary complaints to friends and grandmother about threats made by the appellant to the complainant – whether complainant's statements about the threats were admissible under s4A Criminal Law (Sexual Offences) Act 1978 (Qld)

CRIMINAL LAW – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – GENERALLY – the prosecution at trial led evidence about sexual abuse of the complainant by her father – whether the evidence was admissible

Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A Evidence Act 1977 (Qld), s 9A, s 9C

Farrell v The Queen (1998) 194 CLR 286; [1998] HCA 50, cited HML v The Queen (1996) 190 CLR 348; [2008] HCA 16, cited MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited R v Braye-Jones [1966] Qd R 295, considered R v WO [2006] QCA 21, cited

COUNSEL: T Ryan for the appellant G J Cummings for the respondent

SOLICITORS: Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent

[1] McMURDO P: The appellant pleaded not guilty to three counts of indecent treatment of a child under 16 (counts 1 to 3); three counts of incest (counts 4, 9 and 11) and five counts of sexual assault (counts 5 to 8 and 10) in the Ipswich District Court on 18 May 2009. The complainant was the appellant's younger sister. She was declared to be a special witness under the Evidence Act 1977 (Qld) and her evidence in the trial was given remotely. The trial continued over nine days. On 26 May 2009, during the seventh day of the trial, the prosecution endorsed the indictment that it would not proceed further on three counts of sexual assault (counts 6, 7 and 8). On 28 May 2009, the jury found the appellant guilty of two counts of indecent treatment of a child under 16 (counts 1 and 3); and two counts of incest (counts 9 and 11). The jury found him not guilty in respect of the remaining counts 2, 4, 5 and 10. The appellant was sentenced on the two counts of incest (counts 9 and 11) to four years imprisonment and on the two counts of indecent treatment (counts 1 and 3) to two years and six months imprisonment. The transcript records the judge as stating: "I recommend that you be eligible for release on parole after you've served two years' imprisonment, namely on 28 May 2011."

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The indictment was, however, endorsed with a stamp to this effect: "Order that the date the offender is eligible for parole be fixed at 28.5.11." The appellant appeals against his conviction and applies for leave to appeal against his sentence.

The grounds of appeal

[2] The grounds of his appeal against conviction are manifold. First, his counsel contends that the guilty verdicts are unreasonable and cannot be supported having regard to the evidence as a whole. The particulars of this ground of appeal are as follows. The guilty verdicts were inconsistent and cannot be reconciled with the not guilty verdicts. The complainant's evidence of penetration was so vague that the jury could not have convicted him on the counts of incest (counts 9 and 11). The complainant's evidence was materially inconsistent. The complainant failed to make a timely complaint or to complain to the initial police investigators. Evidence of her later complaint to witnesses included inadmissible evidence of the appellant's alleged threats against her. The complainant's account of the appellant's alleged abuse of her expanded progressively over time, in a series of lengthy police interviews. Her account was not corroborated by any independent evidence.

[3] The appellant's second ground of appeal is that the evidence of a psychologist and the tender of the complainant's academic record were irrelevant and wrongly admitted. If properly admitted, the judge failed to give appropriate directions on how the evidence should be used.

[4] Third, the appellant's counsel contends that inadmissible hearsay evidence, that the appellant threatened the complainant, was wrongly admitted at trial and the judge erred in failing to direct the jury about its use.

[5] The fourth ground of appeal is that the judge erred in failing to direct the jury as to how to use evidence of uncharged sexual acts or discreditable conduct alleged against the appellant.

[6] Fifth, the appellant's counsel contends that inadmissible evidence about sexual abuse of the complainant by her father was wrongly led, and the prosecution case was opened on the basis that the complainant was a "casual sex object for both her father and [the appellant]", so that a miscarriage of justice has resulted.

[7] In respect of his application for leave to appeal against sentence, the applicant's counsel contends the sentence imposed was unlawful because it contained a recommendation for parole eligibility instead of setting a parole eligibility date as required under s 160A(3) Penalties and Sentences Act 1992 (Qld). He submits that this Court should grant the application, allow the appeal and resentence him to a lesser term of imprisonment.

The trial proceedings

[8] Before returning to consider these grounds of appeal, it is necessary to refer to the conduct of, and relevant evidence at, the lengthy trial. The prosecution case turned on the evidence of the complainant. The alleged offences were charged as occurring on various occasions between October 1998 and September 2007 when the complainant was aged between 13 and a half and 22 years and the appellant between 16 and 25 years.

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The prosecutor's opening

[9] The prosecutor, in the course of his opening, stated: "… It will emerge that the complainant was suffering sexual abuse not only from her brother … but from her father as well. He was also charged and proceedings commenced against him, but he died. So he's being dealt with in a higher Court, and there is nothing further to be done in this jurisdiction against him.

You'll also hear that the complainant suffers from an intellectual impairment. She – a mild intellectual impairment. She attended special education schools, and – or had the assistance of teacher's aides at school.

In the family, she was treated as a bit of a misfit, and far from being protected and encouraged, she was regarded, it appears, as something of a nuisance. Her mother regularly, as a matter of course, dismissed any complaints that she made, and always sided with her other siblings. Her siblings, or at least some of them, appear to have been rather overbearing to her, and as you'll hear, she became really a casual sex object for both her father and the [appellant], her brother.

You'll also hear that the family appears to remain hostile to her, as they have not cooperated with the police investigation, and have, with one exception, declined to provide statements to the police."

[10] The prosecutor particularised the counts in this way. "Count 1 … occurred in early 1999 - at the beginning of the school year. The complainant was about 13 and a half, and in … year 9, and this was the first time that anything happened to her from her brother.

She was sitting in the… lounge room watching television. It was after school. The [appellant] approached her and sat down beside her. He put his hand on her lap, and was moving it up and down her leg. He then moved his hand up her body towards her breast area before she resisted.

… Count 2 is similar, though not identical. This also happened at [house 1]. It was the second time it occurred, and again, it occurred in the … first half of 1999. She was again sitting in the lounge room watching television. It was after school. The [appellant] approached her, sat down. He put his hand on the complainant's lap and was moving it up and down her leg. He then moved his hand up to her breast area. He then grabbed the complainant's hand and put it between his legs, touching his genitals.

Count 3 is again similar … It again occurred at [house 1]. It was a school day. She was home after school. The complainant was walking past the [appellant's] room. He grabbed her arm and pulled her into his room. He grabbed the complainant's breasts, and then put her hand on his genitals."

[11] Count 4 was particularised as the first count of incest which the appellant committed upon the complainant. She was inconsistent as to whether it occurred at

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house 1 or at house 2, to which they had moved. It occurred at premises where the complainant shared a bedroom with her sister, A, but this description applied to both house 1 and house 2. The appellant:

"… approached the complainant while she was in bed. He pulled down her … underpants. She resisted. He removed the complainant's pants. He leant over her, opened her legs, and put his penis inside her vagina. Her body tensed up, which caused his penis to come out. He kept trying to put his penis back into her vagina, but her body kept tensing up and he was unable to do so. The complainant tried to push the [appellant] away using her hands and feet.

… Count 5 is a count of sexual assault … and it occurred at [house 2]…

The complainant and her brother were home. The complainant was in the lounge room - she was watching TV. The [appellant] came into the room and he grabbed her hand and put it on his genitals. She moved his hand away, but the [appellant] came back. He came up, sat down beside her, put his hand on her breast. He pulled his penis out of his boxer shorts and put her hand on his penis.

… [The complainant] … may well have been 16 years of age or older.

… [C]ounts 6, 7 and 8 … all occurred in the one day - three charges of sexual assault - and this occurred … at a date unknown in 2003 or [2004], … at [house 2].

Count 6 - the complainant was sitting on the couch watching TV. The [appellant] approached her. He reached out with his hands and grabbed her breasts. The [appellant] took the complainant's hand and put it on his penis and testicles. She tried to move her hand away but he grabbed it and moved it back. She pushed him away and left to go and sweep the floors in the house.

Later in the day - and this is count 7 - she was bending over to pick up some rubbish - the [appellant] came up behind her and put his body against her bottom. The complainant asked the [appellant] why he did that, and [he] said, … 'You know you want it.' That's count 7.

… Count 8 - later in the day she was vacuuming the house. He pulled her into his room and sat her on his bed. He grabbed her hand and put it on his penis and genitals. She tried to move her hands away but he put her hand back on his penis. She tried standing up again, but he pushed her down onto the - on to a lying position. When she tried to sit up, he pushed her back down each time. He started taking off her pants and knickers. She tried to pull them up - and this happened a couple of times before she was able to escape and leave the room.

… Count 9 - now, by this stage the family had moved to [house 3], and this occurred some time in … 2007. The complainant was in bed. The [appellant] came into the room and dragged her to the end of the bed. He removed her pyjama pants and underpants. She tried to pull them back on as he tried to remove them. He managed to remove her underwear. He took his penis out from his boxer shorts. He used his

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hand and put his penis into her vagina. She tensed up and his penis came out. He tried a number of times to re-insert it, and then left. The complainant resisted, and the [appellant] actually held the complainant's hands at some stage to neutralise her resistance.

Counts 10 and 11 … [are] the one incident. Count 10 is one of sexual assault, and count 11 is another of incest. This is the - the last incident. It happened a few weeks before the complainant left home in mid September 2007, and again, it occurred at [house 3].

It was about four in the afternoon. The complainant had just called her grandmother who lived in … New South Wales - to remind her that their show, namely, Bindi the Jungle Girl, was coming on television.

… [S]he was sitting on the couch watching TV. The [appellant] came into the room and pulled his penis out and was waving it around in the complainant's face. He touched the complainant's breasts and waved his penis around her breast area.

Count 11 is the incest - he started taking her pants and underpants off. She resisted, but he managed to get them off. He spread her legs. He put his penis into her vagina. He was holding her arms behind her head with one hand at the same time as he was trying to force his penis into her vagina. They heard a noise outside. The [appellant] threw the complainant's pants at her and told her to fix herself up, and left the room."

Dr Walsh's evidence

[12] The first witness was clinical psychologist, Dr Frank Walsh. After referring to his extensive and unchallenged qualifications and experience, he gave the following evidence without objection from defence counsel. He stated that he interviewed the complainant on 2 April 2008 and confirmed this was for the purpose of assessing her ability to give evidence in court. He recounted the various topics they discussed relating to her background, academic achievements and medical history. The complainant had suffered a distressed birth as her umbilical cord was around her neck. She suffered seizures as a baby and was subsequently diagnosed with idiopathic epilepsy. Dr Walsh conducted the Wechsler test to assess the complainant's intellectual functioning with a view to establishing any cognitive deficits. The Wechsler test placed the complainant's intellectual functioning in the bottom four percentile of the population. She had a full scale IQ score of 74, well below the average of 100. In lay terms, Dr Walsh described her as "of very low intellect and … as having a mild intellectual impairment". This meant that she had a capacity to store and retrieve only smaller amounts of simpler material with accuracy. Her intellectual condition would not impact upon her capacity to remember that smaller amount of simpler material.

[13] In cross-examination, Dr Walsh gave the following evidence. In examining the complainant's ability to give evidence in court, he was not asked to determine whether she was a reliable witness but whether she met the legislative requirements to be a "special witness". Her reliability was a matter for the court. Persons of low intellect could tell lies. She told him that her father had never made any threats to her.

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[14] In re-examination, the following exchange occurred between the prosecutor and Dr Walsh:

"In respect of her father never threats, did she mention anything about threats from anyone?-- Yes. She told me that her brother [the appellant] had made threats that if he - if she told anybody - ah - what he'd done, that he would kill her. Right?-- Said that - she's told me that happened on a couple of occasions."

[15] Defence counsel did not object to this evidence or make submissions in respect of it.

The police evidence

[16] On 15 March 2006, police officer Dunn, the first police officer to interview the complainant, recorded their interview.1 The complainant seemed uncomfortable and nervous. Police officer Dunn commenced the interview by saying that she had heard a story about the complainant's father and brother; she asked the complainant if she wanted to talk about it. The complainant said:

"I just can't do it today. … It's just like, I just need a few weeks to get my head around it. … ."

The complainant said she had spoken about "this" to "a few close friends" but she did not want to mention their names.

[17] Police officer Jenkins gave evidence that she interviewed the complainant at a north Brisbane police station on 13 September 2007. The complainant's auntie had brought her there. The complainant said she was intellectually impaired. For that reason, police officer Jenkins recorded that and subsequent interviews with the complainant. The edited recorded interviews between police officer Jenkins and the complainant were tendered2 and played to the jury over almost two full court days. The trial transcript records that two members of the jury appeared to be asleep for portions of this evidence3 but no grounds of appeal raise this matter.

The complainant's police interview of 14 September 2007

[18] The first tape recorded interview with police officer Jenkins was conducted on 14 September 2007.4 The complainant's evidence included the following. She felt unsafe at home and wanted to escape because of her father and brother. She could not stand being at home alone with them "cause they sexually abuse" her and "force sex onto" her.

[19] The most recent episode of sexual abuse was about two to three weeks prior to the interview. Her father was out. She had been speaking to her grandmother on the telephone about a show on ABC TV which they both enjoyed, "Bindi, the Jungle Girl". The appellant came home and went to the toilet. He pulled his penis out. He took her pants and undies off and "just started to force himself on" her. She told him to stop it but he would not. "He heard mum or dad come home, then he um ..

1 Ex 1. 2 Exs 2-8. 3 AB 57. 4 Ex 2.

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got up, fixed himself up, called [her] a fat whore and left upstairs". The complainant continued watching her TV show. He waved his penis in front of her face. Then he started to feel her breasts and wave his penis around her breasts. He then started to force himself onto her. He spread her legs apart and tried to put his "penis down… in the vagina area". She screamed "stop it" and tried to push him away, but he held her down. He was holding her hands up above and behind her head. She continued trying to watch her show. One of her parents came home. The appellant heard the car pull in. He fixed himself up and told her to put on her pants and clothes. The prosecution relied on this evidence to constitute the sexual assault, count 10 (on which the appellant was found not guilty) and the third count of incest, count 11 (on which the appellant was found guilty).

[20] The appellant began to sexually abuse her when she was about 13 and a half years old. On one occasion, when her parents were out, the appellant was home and another brother, Q, was home but was outside "feeding the chooks", the appellant "tried to feel [her] up and that". He felt her "boobs". This happened probably 20 or 25 times. She could not remember much about the first time. The prosecution relied on this evidence to establish count 1, indecent treatment of a child under 16 (on which the appellant was convicted).

[21] The police officer asked the complainant what happened before counts 10 and 11 occurred. She said that in 2007 the appellant came into her room and dragged her to the end of the bed. He pulled her pants and knickers off and "started to just … um basically the same stuff we were just talking about before". It was in the morning. She had not woken up properly. She could not remember what actually happened that day. He ripped the blankets off her and took away her pillow which she had been hugging. He dragged her to the end of the bed and took her pyjama pants and knickers off. He said that if she told anyone about it he would kill her. She was concerned about her safety. At one point she said that she could not remember him putting his penis in her vagina because she was half asleep, adding that "it'll probably come back to me". The prosecution relied on this evidence to establish count 1 (on which the appellant was convicted).

[22] Later in the interview she described how the appellant tried to put his penis inside her vagina. Her "body tensed up" because his penis hurt her. He told her to relax. What hurt was "the penis going into … uh … the part of the vagina". He was "rocking backwards and forwards" and "trying to get it into that hole in the vagina". She said "[T]he hurting is like someone digging a knife into ya". This "hurting" related to the incident in the bedroom (count 9) and also the incident in the lounge room (count 11). She wanted to hurt him back.

The complainant's police interview of 22 September 2007

[23] Police officer Jenkins next interviewed the complainant on 22 September 20075 with a view to clarifying what happened in the bedroom (count 9) and in the lounge room (counts 10 and 11).

[24] In respect of count 9, the complainant stated the following. The appellant grabbed her legs and put them around his body. He tried to put his penis in her vagina. She tried to fight him off. She was not fully awake. Her parents left at about 6.40 am to attend a meeting. Her mother asked her to clean the house. The complainant went

5 Ex 3.

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back to sleep. After her brother dragged her to the end of the bed and pulled her pyjama pants and knickers down, he put her legs around his body and started to put his penis in her vagina. She tried to fight him off. She told him not to do it. He said, "You know you want it." The next thing she realised he was not in her room. Police officer Jenkins asked her to describe the appellant's penis. She said it was "big and long". Police officer Jenkins asked her to draw a picture depicting its size. The complainant complied and the prosecutor tendered the drawing.6 The depiction is of a sausage shape, approximately a centimetre wide by five a half centimetres long. She added,:

"My body kept on tensing up, he kept on saying, 'relax, relax', like … my body just kept on tensing up and it didn't want, want it … As my body tensed up, … it knocked the penis out when … it tensed up … and the more times he tried to put it back in … more time my body kept on … tensing up and like pushing it out."

When he was rocking backwards and forwards he asked her "Does it feel good and that." She said "no" and told him to get off. The next thing she knew he was not in her room anymore. She put her knickers and pants back on. The appellant called her names, as he had for years, and she could not handle it anymore.

[25] The complainant described another occasion when the appellant came to a room she shared with her sister late at night. Her sister was asleep. The appellant pulled down the complainant's pants and knickers and opened her legs. He started to put his penis in her vagina. Her body tensed up and that caused his penis to come out. She pushed him away and he left the bedroom. The prosecution relied on this evidence to establish the charge of incest, count 4 (on which the appellant was found not guilty).

[26] He "must have tried" to put his penis in her vagina about three or four times. When her body tensed up and caused his penis to come out, it was as though her body "puts a wall up". When he tried to put his penis in her vagina, she felt "a bit uncomfortable". It was like "someone stick a knife" into "the vagina area". She described the vagina as "between the legs" and that it was "for um … like when you have kids". She said she "probably got myself confused again". She described the feeling as "like, it was a knife or something's trying to get through the wall" which formed when her body tensed up. She did not know how to describe it.

[27] She told her grandmother about what was happening, as well as WPS, two other people, and SMJ who was "like a mother" to her.

The complainant's police interview of 26 September 2007

[28] Police officer Jenkins next interviewed the complainant on 26 September 2007.7 The complainant gave the following evidence. She was watching "The Price is Right" on TV in the lounge room after school and a knitting lesson. The appellant, unusually, came and sat next to her. Her mind was "playing tricks". She thought he put his hand on her lap. Then he "started to rub his hand up" and down her leg. She was 13 and a half. The appellant "started to move his hand" up her body. It did not feel right. She left the room and went downstairs. He "started to move" his hands up towards her breasts and she tried to push him away. He did it again and she

6 Ex 9. 7 Ex 4.

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pushed him away again. He did it once more and she pushed him away a third time before she left the room. He laughed and thought it was a great joke. This evidence related to count 1 (on which the appellant was convicted).

[29] The complainant then gave evidence of another occasion after school. The appellant put his hand on her leg. He then moved his hand up to the breast area. She moved his hand away as she did not like him doing this. He grabbed her other hand and put it between his legs. She got up and left the room. He put her hands on "his penis and balls". This evidence related to count 2 (on which the appellant was found not guilty).

The complainant's police interview of 27 September 2007

[30] The interviews between the complainant and police officer Jenkins continued on 27 September 2007.8 The complainant gave the following evidence. On one occasion, in about 2003, her parents were out and she was watching TV in the lounge room. The appellant came out of his room and put his hands on her breasts. She asked him what he was doing but he did not answer. She pushed his hands away. He grabbed her hands and put them on "his penis and balls" (count 6). She tried to move her hand away but he grabbed it and put it back on "his penis and balls". She pushed him away again. She began to sweep the floor. When she bent over to pick up rubbish he came behind her and put his body against her "bum". She asked him why he did that and told him to go away (count 7). Later that day he pulled her into his room. This was against the house rules which were that there were no boys in girls' rooms and no girls in boys' rooms. He grabbed her hands and put them between his legs on his "penis and balls". She removed her hands but he put them back and she removed them a second time. She pushed him away. He pushed her down. He started to take off her pants and knickers. She pulled them back up. This happened a couple of times (count 8). Her parents came home shortly afterwards. (The prosecution withdrew counts 6, 7 and 8 at the end of the prosecution case on the seventh day of the trial.)

The complainant's police interview of 18 October 2007

[31] The complainant's final recorded interview with police officer Jenkins was conducted on 18 October 2007. It was before the jury in a heavily edited form. The complainant said she had not spoken to her mother or her sisters about the appellant's conduct although her brother Q suspected "something was going on but he didn't know what." She had spoken about it to WPS; SMJ; her Auntie L; her grandmother; and E and V. She had not spoken about it to her friends or teachers at school. She added that she found life at home stressful because she argued with her mother and her brothers and sisters called her names.

The complainant's statement of 20 May 2009

[32] At the commencement of the fourth day of the trial, in the absence of the jury, defence counsel submitted to the judge that the particulars provided by the prosecution in respect of count 3 and count 5 were not disclosed by the complainant to police during the course of the many long interviews. Those counts turned solely on the complainant's additional disclosures during her evidence at the committal proceeding. He submitted that the prosecutor should provide him with a statement

8 Ex 5.

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from the complainant in respect of counts 3 and 5 and that he should then be permitted to cross-examine police officer Jenkins about this further statement in the absence of the jury. The prosecution provided this statement which was tendered under s 93A Evidence Act9 and defence counsel was permitted to cross-examine police officer Jenkins in the absence of the jury.

[33] The statement contained the following evidence. Sometime after her 14th birthday she was alone in the house with the appellant. He grabbed her and dragged her into his room. He sat her on his bed before touching her breasts and putting her hands on his genitals. This evidence related to count 3 (on which the appellant was convicted). In 2000 or 2001 she was in the lounge room when the appellant came in and spoke to her. He touched her breasts before he put her hand on his exposed penis. She could only remember bits and pieces. This evidence related to count 5 (on which the appellant was acquitted).

[34] She said that "the wall" that she referred to in her interviews with police officer Jenkins was on the inside of her vagina.

The complainant's evidence in chief

[35] As it was common ground that the complainant was a special witness under the Evidence Act, she gave her evidence at trial remotely by way of closed circuit television. Her brief evidence in chief was to the following effect. When she spoke in the police interviews about "the wall" she was referring to "inside the vagina". She left home because she wanted to get out of the unsafe family environment. It was the appellant and her father who made it unsafe. The people in her family with whom she now had contact were her brother, Q, his wife, M, sometimes her Auntie L, but mainly her grandmother.

The cross-examination of the complainant

[36] The complainant was cross-examined over three days. The transcript of that cross-examination is often confusing. It is sometimes difficult to comprehend which questions and answers related to which counts. It included the following.

[37] She was first asked about counts 3 and 5. Police officer Jenkins asked her to give a statement about counts 3 and 5 because she gave evidence about them at the committal hearing but not in the police interviews. She did not remember counts 3 and 5 at the time of those interviews but they came back to her at the committal hearing.

[38] She described her memory as "Consistently good" and that she was "pretty good with dates". She read magazines and some Mills & Boon romance novels. She attended school to grade 12 and had some special education. She did her own washing, cooking and banking and received a pension from Centrelink. When she lived at home, her mother looked after her money. Her parents were strict with her. Some of her brothers and sisters picked on her. The appellant called her names all the time; when she tried to defend herself, she got into trouble with her mother. Her parents did not stick up for her. She thought this was unfair. It made her angry but she controlled herself. Since she had left home, her life was better and she had her own money. She did not like living at home because she did not feel safe there and

9 Ex 23.

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she wanted to get away. She did not feel she had enough time to spend with her mother. On occasions, she tried to tell her mother about the sexual abuse but other people were always around.

[39] When the police first approached her, she felt this was "sprung" on her. She was scared and it was difficult for her to "explain stuff" to them. At high school she saw guidance counsellors a few times a week but did not tell them about the sexual abuse. She spoke to the counsellors about how she was not coping with some of the classes. She was too scared to talk about what was happening with her brother and father. She did not complain to the school nurse whom she saw on occasions. She spoke to her grandmother about the abuse. Her grandmother did not always get on with her parents. Her Auntie L did not like her father. She was unsure whether her Auntie L liked the appellant. She was not close to her sister, A, with whom she shared a room, although they were close when A was pregnant with her only daughter. She denied telling anybody that she was pregnant except in a note she sent to SMJ. She did not get on with her sister, S. She denied telling S's friends she was pregnant. The first person she told about the abuse was her grandmother in 2004 or 2005, she thought, but she could be wrong about that date. She agreed she had earlier said that she told her grandmother in 2002 about the abuse. She had to do all the cleaning, washing and tidying up at home.

[40] She stopped attending school in 2002 and completed TAFE courses, one of which she completed at home. Her brother, Q, left the family home in 2001. Q knew about her father's abuse but not about the appellant's abuse. She told Q's wife, M, about it. She trusted M and Q at this time and still gets on with them. The complainant was asked why she said in her statement that when count 5 occurred Q was not living at home, whereas at the committal proceedings she said that he was at work. The transcript suggests she did not answer the question for some time. The judge asked defence counsel to repeat the question and instructed her to answer. She said she did not know why she gave that answer at the committal. She asked for a toilet break.

[41] The court adjourned for 14 minutes and her cross-examination then continued. Defence counsel asked her to give details about the part of her most recent statement where she said in relation to count 5, "I also remember another incident but I can only remember bits and pieces of it." She said that incident happened at house 1. Defence counsel pointed out to her that in her statement she said it happened at house 2. She said, "Look, I'm getting confused at the moment so can I, please, stop for today because I don't want my costo-chondritis flaring up and its on the verge of flaring up at the moment." The judge acceded to her request and adjourned at 4.23 pm.

[42] The next morning at 10.41 am, defence counsel returned to cross-examining her about inconsistencies between her most recent statement to police officer Jenkins and her evidence in court. He asked whether her brother, Q, was at work or downstairs feeding the chooks when she said the appellant committed count 5. She replied that Q was downstairs feeding the chooks and that the incident happened on a school afternoon. Defence counsel pointed out that she had told police officer Jenkins in her most recent statement that the incident occurred on a Saturday. She agreed it occurred on a Saturday; she had made a mistake in her evidence. Defence counsel asked why, in respect of count 5, the appellant stopped putting her hand on his penis. She said, "Then we heard the geeses squawking." Defence counsel

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reminded her that in her statement she said, "We heard a car pull up into the driveway." She explained, "When someone pulls into the driveway, the geeses squawk." Defence counsel responded, "You've got an answer for everything, haven't you?" Defence counsel showed her the transcript of the committal proceedings in respect of counts 3 and 5 and cross-examined her at length about differences between her answers to questions at the committal proceedings and her account to police in her statement. She said that counts 3 and 5 just came back to her at the committal proceedings. She had a pain in her knee at the committal proceedings and this affected her concentration.

[43] The court adjourned at 1.08 pm on Friday, 22 May 2009 and resumed the following Monday at 10.13 am. Defence counsel continued to cross-examine the complainant about inconsistencies between her evidence in the interviews with police and her evidence at committal. The inconsistencies were because she forgot particular matters at the time she was asked those questions. At one point she said she was scratching her head at the time she was abused, whereas at other times she had not mentioned scratching her head at the time whilst giving evidence of this instance. She was unable to explain why she had given different evidence about the year count 4 occurred.

[44] In relation to count 2, she agreed that, at the committal, she forgot the appellant had put her hand on his genitals and forgot that he had put his hand on her breast.

[45] As to count 4, she agreed that the appellant fought with her to remove her pyjama pants and knickers. She finally conceded that, at the committal, she said she was wearing only a nightie when count 4 took place.

[46] Defence counsel asked the complainant about the last occasion when she said something happened (counts 9, 10 and 11). The complainant gave a long and detailed answer which was broadly consistent with her interview with police as to counts 9 and 11. She omitted, however, to mention that the appellant had touched her breasts, the touching central to the sexual assault alleged in count 10 (on which the jury acquitted). She said she was wearing a skirt, but she had told police officer Jenkins she was wearing denim pants. The correct position was she was wearing a skirt; she was just confused. She denied defence counsel's contention that her evidence was "rubbish".

[47] She told a friend, BF, about not feeling safe around her father, not about what happened with the appellant. She spoke to her grandmother about it a few times.

[48] When questioned about counts 6, 7 and 8, she said that she had "gone a blank on that one at this present time".

[49] She told her friend WPS that she did not feel comfortable or safe in the home environment; she was unhappy because of the general household chores required of her as well as caring for her sister's children; she could not handle it any more; she had to get out. She did not tell WPS that she thought she was pregnant. When she stayed at her Auntie L's place for a few days, she told her auntie that she did not want to live at home anymore because she did not feel safe around her father and her brother. She said she "wanted to get away from all this shit". She denied telling Auntie L that she was pregnant. She agreed that she told her grandmother some details of the appellant's sexual abuse of her which matched in exact detail what she said her father had done to her.

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[50] Rather curiously, at no time did defence counsel put to the complainant that any specific count did not occur. Nor did he suggest that her father, not the appellant, committed these offences. Perhaps this was because he did not want to put at risk her omission to make any mention of counts 6, 7 and 8 in her evidence at trial.

[51] The complainant was excused from giving further evidence. In the absence of the jury, defence counsel then pointed out that, in cross-examination, the complainant had no recollection of counts 6, 7 and 8. This meant that he was effectively deprived of the opportunity to cross-examine her in relation to those counts. He submitted that those charges should be withdrawn from the jury's consideration. The prosecutor agreed. The jury returned and the judge gave the following direction:

"Now, ladies and gentlemen, as you heard during [defence counsel's] cross-examination of the complainant, the complainant was unable to recall certain events regarding certain of the counts. Her mind was a blank I think she said on a few occasions.

Consequently in relation to counts 6, 7 and 8, [defence counsel] has accordingly been deprived of the opportunity of cross-examining the complainant regarding those counts. In those circumstances, those charges will be withdrawn. That is charges 6, 7 and 8. They need not - they should not concern you at all now. At the conclusion of the Crown's case tomorrow, … [the] Crown Prosecutor … will formally discontinue those three counts."

Evidence of preliminary complaint

[52] WPS gave evidence that she knew the complainant and her sister through a church program. The complainant was not as bright as other children. At first, she was a happy child but that changed over the years. The complainant had to look after her sister's children and did not like the way she was treated at home. On an occasion at a church play group, she told WPS that she could no longer stay at home with her father and brother. WPS said something like, "Well, why. Are they hurting you?" The complainant said, "If hurting is sexual abuse then yes." WPS responded with something like, "You're kidding me, aren't you?" At that point, the complainant's mother arrived in her car to pick her up.

[53] About a month later, WPS and the complainant were walking children to school. The complainant was crying. WPS asked if the complainant knew what sexual intercourse was. She said yes. WPS asked if that was what was happening. The complainant responded affirmatively. WPS enquired whether contraception was being used. The complainant responded negatively. WPS explained to the complainant that she could become pregnant and that this was especially undesirable as something could be wrong with the baby because of the close family connection. WPS also told the complainant that it was essential she tell the truth because she had made very serious accusations against her father and brother and they could be in a lot of trouble. She asked the complainant what she wanted WPS to do. The complainant was distressed, pacing and holding her head. She needed time to think. She said she could not handle it any more. She was a prisoner in her own home and it had to stop. The complainant said she had not told her mother as her mother thought she made things up and she would get into trouble. She had not told her sister as her sister would tell her mother and she would get into trouble. The appellant said that if the complainant told anybody he would kill her.

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[54] WPS rang a telephone support service and took the complainant to a women's health service where the complainant spoke to a counsellor. She then took the complainant to her older sister's home to collect some items and dropped her at the train station so she could move to her Auntie L's place.

[55] In cross-examination, WPS agreed that after the complainant had left home, she told either WPS or her Auntie L (WPS was unsure who) that she thought she was pregnant.

[56] The complainant's grandmother gave the following evidence. In about 2004 the complainant said she was frightened of the appellant as he had approached her sexually and he had threatened her if she told anybody. The day the complainant left home and moved to Auntie L's place, the complainant rang her grandmother. The complainant said she could not stand her treatment at home any longer.

[57] The complainant's Auntie L gave the following evidence. The complainant came to live with her in September 2007 after telephoning in tears and in a distressed state. When she arrived she said, "I'm sorry to involve you in all this." She said she was sick of the abuse from her father and her brother. Auntie L enquired as to the sort of abuse. The complainant said, "The sexual abuse from my brother and my father getting in the shower with me." She said the last occasion was about two weeks earlier. She arranged for the complainant to attend Centrelink and to meet with police officer Jenkins at the local police station. In cross-examination she agreed that on one occasion the complainant told her she thought she might have been pregnant.

[58] SMJ gave evidence to this effect. She knew the complainant through a local community group. In September 2005, the complainant told her she was having problems at home. The complainant said her father and the appellant were having sex with her. On one occasion in 2005, the complainant handed her a handwritten note10 in these terms:

"There was a few months ago now that I thought I was p– but I will always be scared from now on. 3+ years to what I was saying about my family problems etc. if I make a doctors appoinment mum always finds out and cancells without asking me first."

[59] SMJ suggested that the complainant go to a women's health centre or see a doctor.

[60] A senior sexual assault worker gave evidence that on 12 September 2007 she met with the complainant who had been brought to her service by a family friend, WPS. The complainant said she had been sexually assaulted by her father and her brother. She said the most recent event had been around 10 August. In cross-examination, she agreed that WPS did a lot of the talking.

Medical evidence

[61] Dr Anne-Louise Swain, a clinical forensic medical officer examined the complainant on 31 October 2007 following allegations that she had been sexually assaulted. The complainant's consent was given through an adult guardian because

10 Ex 20.

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of her intellectual impairment. It was difficult to obtain a history from the complainant because of her intellectual impairment. The police interview process was not complete. It was apparent that there were 20 separate incidents, but the complainant had been interviewed only in respect of 11 incidents at the time of Dr Swain's examination. The assaults had taken place over a number of years starting when she was 14 years old. Five incidents had involved penetration. The most recent was in August or September 2007.

[62] The complainant was calm and coherent but she put her hands over her face when talking about the abuse. She said she wanted to forget about it and she was really nervous. She said it started with her brother when she was 13 and a half and then she did not want to speak to Dr Swain any more. She cooperated in the examination.

[63] Dr Swain noted a 2mm notch and a tag on the hymen. The complainant's genitalia were otherwise normal. The absence of any injury did not exclude previous penetration. The findings were inconclusive. They provided no evidence as to whether or not the complainant had had previous sexual intercourse. The speculum passed into the vagina with ease. When opened, the speculum was roughly the size of a penis. In cross-examination, Dr Swain confirmed that it was impossible to say from the examination whether or not the complainant had had previous sexual intercourse.

The withdrawal of counts 6, 7 and 8

[64] At the close of the prosecution case the prosecutor, as foreshadowed, endorsed the indictment that the Crown would not proceed further upon counts 6, 7 and 8. The judge discharged the appellant on those counts and said to the jury: "That means that those counts are no longer current". He gave the jury no direction as to how to treat the evidence they had heard about those counts.

The defence case

[65] The appellant did not give or call evidence.

The judge's relevant directions to the jury

[66] During the judge's directions to the jury, his Honour made no reference to the evidence about counts 6, 7 and 8 in respect of which the prosecution decided not to call further evidence.

[67] His Honour told the jury that there were eight counts for their consideration. They must reach a unanimous verdict on each count. The evidence on which they could reach their verdict was:

"… what the witnesses said in the witness box, or on the telephone, or by way of video. The complainant gave her evidence by video tape. Video taped interviews with the police officer, and she gave some additional evidence and was cross-examined by video tape. …

The evidence is also the various exhibits …

Evidence is what the witnesses say, and what the exhibits contain."

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[68] The judge emphasised that the burden of proof was on the prosecution and the standard of proof was beyond reasonable doubt. The appellant was presumed innocent and was not required to give evidence. The essential issue was the complainant's credibility and reliability. The judge explained the difference between an honest witness and a reliable witness. The jury was entitled to accept all or part of a witness's evidence. Consistency was relevant in considering whether a witness was honest or reliable.

[69] The judge explained that there were eight separate charges and the jury must consider each of the charges separately. If they thought the appellant was guilty of one charge, that did not make him guilty of all. If they thought he was not guilty of one, that did not mean he was not guilty of them all. They must look at the evidence in respect of each of the counts.

[70] The judge explained the elements of the offences and then referred to the particulars upon which the prosecution relied in respect of each count.

[71] As to the incest counts, the judge explained that if the jury were in doubt as to whether the appellant penetrated the complainant's genitalia, but was satisfied that he attempted to do so, they would find him not guilty of incest but guilty of attempted incest.

[72] The judge reminded the jury that the complainant told police that the appellant's penis was "big and long", but this was inconsistent with her drawing of what she said was his life-size penis.

[73] The judge again reminded the jury: "You need to consider each of the counts separately. Evaluate the evidence on them separately and then come to a conclusion in respect of each one. Are you convinced? Are you satisfied beyond reasonable doubt about this count as to whether the [appellant] is guilty or not guilty, and then go through each one separately.

The evidence in respect of each of these remaining eight counts is different. They're alleged to have occurred on different days, different times of the day, different years, the girl's alleged to be wearing different things, the [appellant] is alleged to be wearing different things and to have done different things. And things are alleged to have happened afterwards, geese squawking, dog barking, cars pulling up, a tin lid dropping, the girl going out into the downstairs to do some washing or to go out onto the front veranda et cetera. The facts in - the alleged facts in respect of each of these counts is different, so you need to look at them differently.

… [y]our verdicts need not be the same in respect of each of the eight counts. You can find the [appellant] guilty of all, not guilty of all, or any combination of guilt or innocence. But don't come to some sort of compromise position. That, oh, well, we're not satisfied of these but we think he did something so let's slot him on those couple, let's find him guilty on those. That's not a rational or a reasoned way of doing things. It's not an intellectually honest way of doing things.

If you, at the end of the day, think that the [appellant] did each of the things that he's alleged to have done, you find him guilty on all of

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them. If, at the end of the day, you're not satisfied beyond reasonable doubt of any of them, you find him not guilty of any of them. Or if you think you're satisfied beyond reasonable doubt of some of them, you find him guilty of those and not guilty of the others. So no - none of this - no compromising. No saying well we think he did something so let's get him for something. It's got to be beyond reasonable doubt for each one for you to find him guilty of the lot. Beyond reasonable doubt for any one to find him guilty of any one of them.

If you've got a reasonable doubt about the complainant's truthfulness, her honesty or reliability in relation to any one count or more counts, you must take that into account when you assess her truthfulness, her honesty and reliability regarding the other counts and her evidence generally. So your general assessment of the complainant as a witness will be relevant to each of the eight counts, but you need to consider the evidence separately for each one.

It may be the case that you'll reach a stage where you're not satisfied beyond reasonable doubt of one or more of the offences. If that occurs you have to find the [appellant] not guilty of that one or more. And that doesn't mean - doesn't necessarily mean that you can't convict the [appellant] of the others if you're satisfied beyond reasonable doubt that he's guilty of those others.

But if you do have a reasonable doubt about any of the counts ask yourselves whether or not that affects the way you look at the complainant's evidence generally. That you're not – some doubts about this count or that count or a couple of counts. Ask yourselves whether or not that doubt - whether or not that doubt that you have about the complainant's evidence affects the way you look at her other evidence. Affects the way that you assess her honesty and reliability generally. Because to find the [appellant] guilty of all of these counts or indeed any of them, you must accept the complainant's evidence. We can't get away from that. The complainant woman - young woman has told you - has given evidence that the [appellant] did these things to her. As I said before lunch there was no-one else there. There was no CCTV footage. You either accept her evidence or you don't."

[74] The judge summarised counsel's competing contentions in this way. The prosecutor invited the jury to make allowances for the complainant's intellectual impairment. The psychologist's evidence put her in the "lowest four per cent of people, intellectually speaking." The inconsistencies in her evidence were not important and were of the type that could be expected. She was largely consistent in her evidence which was too complex and too adult to have been made up. She was able to distinguish between the acts committed by her father and those she said were committed by the appellant.

[75] The defence case was that the complainant's story changed. She was not truthful. There were many major and minor inconsistencies which undermined her account. The judge set out in some detail the inconsistencies relied on by the defence in respect of each count and then told the jury that it was a matter for them what they made of those inconsistencies.

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[76] The judge next directed the jury as to the preliminary complaint evidence, emphasising that it was relevant only to the complainant's credit; it was not evidence of the truth of those statements.

[77] Returning to defence counsel's submissions, the judge reminded the jury that the defence case was that the complainant did not give any specific details to other of her allegations of abuse; the generality of her complaints did not ring true. The defence case was that the complainant was an unreliable and unconvincing witness who was prepared to lie to suit her purposes. She told at least one witness that she thought she was pregnant and yet she denied this. The defence emphasised the medical evidence; it did not support the complainant's claims. Her contention that some offences occurred in a bedroom where her sister was sleeping at that time was implausible. For all these reasons, the jury should find the appellant not guilty.

[78] The judge reminded the jury of the routine practice that complainants in cases like this give evidence by way of video tape; they should not draw any inference from that as to the appellant's guilt; its probative value was neither increased nor decreased by the fact that it was given by video tape; they must not give any greater or lesser weight to it because of that.

[79] The judge explained to the jury that, because of the delay in making the complaint against the appellant, the appellant may have been denied the chance of contacting potentially favourable witnesses. Consequently, the judge warned the jury that it was dangerous to convict upon the complainant's testimony alone unless, after scrutinising it with great care, and considering the circumstances relevant to its evaluation and paying heed to this warning, they were satisfied beyond reasonable doubt of its truth and accuracy.

[80] The jury retired to consider their verdicts at 4.32 pm on the eighth day of the trial. They deliberated until 9.05 pm before retiring for the night. They returned their verdicts the following day at 2.35 pm.

Were the jury verdicts unreasonable because they were inconsistent? [81] The appellant contends that the guilty verdicts on counts 1, 3, 9 and 11 are

inconsistent with the not guilty verdicts on counts 2, 4, 5 and 10 so that the guilty verdicts are unreasonable and amount to a miscarriage of justice.

[82] The judge made clear to the jury that they must consider the evidence in respect of each count separately and determine whether, on each count, the prosecution has proved the appellant's guilt beyond reasonable doubt; the jury were entitled to return different verdicts on different counts. He strongly warned the jury against reaching a compromise verdict.11 There is no reason for this Court to consider the jury did not understand and act on those directions.

[83] The jury returned a not guilty verdict on count 2. When the complainant was cross-examined at trial about count 2, she agreed that her evidence at the committal was not that the appellant put her hand on his groin and his genitals and that he put his hand on her breast;12 in the police interviews she said that he did these things. These allegations were central to the particulars of count 2.13 The jury were entitled to consider that these inconsistencies in respect of count 2 were so significant as to raise a reasonable doubt as to the appellant's guilt on that count.

11 See the directions discussed at [69] of these reasons, and those set out at [73] of these reasons. 12 See [44] of these reasons. 13 Set out at [10] of these reasons.

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[84] The jury returned a not guilty verdict in respect of count 4. The complainant told police count 4 happened when she was in year nine, that is, in 1999. At the trial, she said it happened when she was in year 10 or 11.14 Another inconsistency in her evidence concerned whether she was wearing only a nightie or pyjamas and underpants when count 4 occurred.15 This may have had some significance as the complainant said the appellant fought to take off her underpants. The count was particularised as involving the appellant taking down her underpants.16 The jury were entitled to be concerned about these discrepancies in the complainant's evidence as to count 4 and to give the appellant the benefit of the doubt in respect of that count.

[85] The jury found the appellant not guilty on count 5 which was particularised as happening in house 2 when her brother, Q, was at home.17 In cross-examination at trial, the complainant gave inconsistent evidence as to whether this count occurred when Q was living at home or not living at home. At one point, she said her brother Q was at work. In another answer, she said her brother Q was downstairs feeding the chooks.18 She gave inconsistent evidence as to whether this incident occurred at house 1 or house 2.19 These significant inconsistencies, directly contrary to the prosecution's particulars, were justification for the jury giving the appellant the benefit of the doubt in respect of count 5.

[86] The jury also found the appellant not guilty of count 10 but convicted him on the closely associated count 11. When the complainant was cross-examined at trial about counts 10 and 11, she gave a spontaneous and lengthy account of count 11, broadly comparable with her earlier accounts. She omitted the crucial particularised allegation upon which count 10 rested: that the appellant had touched her breasts.20 This was ample reason for the jury to be left in doubt in respect of count 10. By contrast, the complainant's largely consistent account of the commission of count 11 was ample evidence upon which the jury could convict.

[87] The inconsistencies in respect of counts 2, 4, 5 and 10 on which the jury found the appellant not guilty were capable of being viewed by them as more significant than the inconsistencies in the complainant's evidence as to counts 1, 3, 9 and 11 on which they found the appellant guilty. The jury must have well understood from the judge's directions they could not return compromise verdicts. They considered their verdicts for a lengthy period. They appear to have undertaken their difficult task diligently and according to the judge's directions. The verdicts were not illogical or unreasonable and do not in themselves suggest a miscarriage of justice: MacKenzie v The Queen.21 It follows that this ground of appeal must fail.

Was the evidence about penetration so vague as to require the jury to have a reasonable doubt on the incest counts?

[88] The appellant contends that the complainant's evidence as to penetration was so vague that the jury could not be satisfied that penetration had occurred; the element of carnal knowledge in the incest charges, counts 9 and 11, was not proved beyond

14 See these reasons [43]. 15 See these reasons [45]. 16 See these reasons [11]. 17 See [11] of these reasons. 18 See [39] and [41] of these reasons. 19 See [41] of these reasons. 20 See [11] of these reasons. 21 (1996) 190 CLR 348, 365-370; [1996] HCA 35.

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reasonable doubt. The convictions on these counts should be set aside and, at best for the prosecution, convictions of attempted incest substituted.

[89] The complainant's evidence as to penetration, an essential aspect of the counts of incest (counts 9 and 11), was at times confusing. Defence counsel understandably made much of her drawing of the appellant's penis. But her evidence that the appellant's penis hit the wall of her vagina, and that this wall was in her vagina, was uncontroversial. Although Dr Swain's examination did not establish that the complainant had had sexual intercourse before the examination, her evidence was not inconsistent with previous sexual intercourse. For the offence of penile rape to be proved, it is not necessary to establish full penetration of the vagina by an erect penis. Any degree of penetration of the female genitalia by the male genitalia is sufficient to establish the element of carnal knowledge. There was ample evidence from the complainant as to counts 9 and 11 to enable the jury to be satisfied that the appellant had carnal knowledge of the complainant. Importantly, the judge told the jury that if they were not satisfied beyond reasonable doubt that penetration occurred in respect of any count of incest, they should consider the alternative verdict of guilty or not guilty of attempted incest. The jury verdicts demonstrate their satisfaction as to penetration on counts 9 and 11. They were entitled to be so satisfied on the evidence. This contention is not made out.

Was the jury verdict otherwise unreasonable?

[90] The appellant contends that the guilty verdicts were unreasonable and amounted to a miscarriage of justice because of the material inconsistencies in the complainant's evidence; the absence of complaint to her mother, teachers, or friends and the lateness of any complaint to her grandmother and to others. The appellant also emphasises that the complainant did not initially complain to police and that her account grew over time. Nor was her evidence supported by independent evidence.

[91] The inconsistencies in respect of the counts on which the appellant was convicted were highlighted to the jury by defence counsel; by the judge in his directions to the jury; and again in the judge's summation of the defence case. They were matters for the jury to consider in reaching their verdicts. They were not such glaring inconsistencies as to require the jury to be left in doubt as to the appellant's guilt on counts 1, 3, 9 and 11.

[92] Similarly, the lateness of the complaint was highlighted at trial before the jury. The jury were entitled to conclude that the complainant's particular vulnerability and the appellant's threats were understandable reasons for her taking time to leave her unfortunate domestic situation and her later complaints. Nor were the jury required to necessarily consider that her reluctance to complain to police and the unfortunate incremental nature of her subsequent complaints to police made her an unreliable witness. The jury watched and listened to her video taped interviews with police and saw her cross-examined over many days. The judge warned the jury that her evidence was not supported by independent evidence and, because of the delay in prosecuting the case, it was dangerous to convict the appellant on her evidence without supporting evidence. There is no reason to consider the jury did not act on those directions during their lengthy deliberations. None of these contentions, either individually or collectively, demonstrate that, after considering the whole of the evidence, the guilty verdicts were unreasonable or amount to a miscarriage of justice. This ground of appeal must fail.

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Should the judge have directed the jury as to evidence of sexual acts not the subject of charges?

[93] It is logical to next deal with the appellant's contention in the fourth ground of appeal that the judge erred in failing to direct the jury about the use of evidence of sexual acts not the subject of discrete charges.

[94] Defence counsel and the prosecutor at trial told the judge, in the absence of the jury, that it was unnecessary in this case to direct the jury about the limited use to be made of evidence of uncharged acts.22 It follows that this ground of appeal can only succeed if it has resulted in a miscarriage of justice.

[95] Counsel for the respondent concedes that trial counsel misled the judge on this issue. That concession was rightly made for two reasons. First, the jury were given no guidance as to how to deal with the evidence they had heard about counts 6, 7 and 8 which the Crown abandoned at the close of its case. The jury should have been directed to disregard the evidence in respect of those counts. In the absence of such a direction, the judge's general jury directions as to what was evidence in the case may have suggested that the evidence about counts 6, 7 and 8 was relevant to their verdicts.23

[96] Second, there was evidence before the jury from the complainant that, since she was 13 and a half years old, the appellant had "tried to feel her boob" probably 20 to 25 times.24 The judge should have warned the jury against propensity reasoning in respect of that evidence: see HML v The Queen25 and R v WO.26 This was an error of potential importance in a case of this kind where the verdicts turned solely on the reliability of the complainant's unsupported evidence and where that evidence had significant weaknesses. The jury were not entirely persuaded by the complainant's evidence, as was demonstrated by their not guilty verdicts on four counts.

[97] There is a real danger that these two errors may have caused a miscarriage of justice. Despite the respondent's contrary contention, this is not a case where, despite these errors, the convictions can stand as no substantial miscarriage of justice has occurred.27 It follows that the appeal against the convictions on all counts must be allowed and a re-trial ordered.

[98] As the prosecution may elect to proceed again against the appellant in respect of counts 1, 3, 9 and 11, despite the time he has now spent in custody, it is necessary to say something briefly about a number of the other grounds of appeal.

Dr Walsh's evidence

[99] The appellant contends that the evidence of Dr Walsh and the tender of the complainant's academic record were irrelevant and wrongly admitted. If properly admitted, the judge failed to give appropriate directions on how the evidence should be used.

[100] Dr Walsh's evidence was led and the academic record tendered without objection by defence counsel. This may have been for tactical defence reasons. Perhaps it was

22 AB 249. 23 See the directions set out at [67] of these reasons. 24 See [20] of these reasons. 25 (2008) 235 CLR 334; [2008] HCA 16. 26 [2006] QCA 21. 27 Criminal Code, s 668E(1A).

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thought that the jury would be less likely to accept the complainant's evidence if they knew of her low intellect and that the comparison between her low intellect and her ostensibly substantial academic record somehow suggested she was not credible or not reliable.

[101] I do not consider Dr Walsh's evidence was admissible at trial. It was clearly admissible on an examination before the judge in the absence of the jury to determine the preliminary question of whether the complainant was a special witness under Pt 2 Div 4 Evidence Act 1977 (Qld)28 or competent to give evidence.29 But the complainant's status as a special witness under the Evidence Act and her competency to give evidence was unchallenged before the jury in this case. Although a special witness under the Evidence Act, once she gave evidence it was a question for the jury whether she was a credible and reliable witness.

[102] Expert evidence is admissible to provide specialised information likely to be outside the experience and knowledge of a judge or jury: Farrell v The Queen.30 It is true that the jury could not have known without Dr Walsh's evidence that the complainant precisely was in the lowest four per cent of intelligence of members of the community. But jurors are not routinely informed of the results of intelligence tests of witnesses. Some witnesses are more or less intelligent than others. Dr Walsh's evidence as to the complainant's ability to remember seemed to be a common sense observation and not one outside the ordinary experience and knowledge of jurors. Jurors would have been well able to form an opinion about the complainant's intellectual functioning and memory skills unaided by expert evidence of the type given by Dr Walsh: her taped interviews with police ran for approximately eight hours and she was cross-examined over three days. I have viewed some of the tape recorded interviews between the complainant and police officer Jenkins. It was not difficult to form a general assessment from those tapes of the complainant's intellectual functioning and memory skills insofar as this was relevant to her credibility and reliability. She was clearly, as Dr Walsh's evidence suggested, a deal slower than the ordinary person, but she was able to give coherent evidence and was capable of remembering significant events in her life. Dr Walsh's evidence was not admissible in the trial as, insofar as it was relevant, it did not provide specialised information outside the experience and knowledge of the jury. There was a danger that the jury may have used his evidence to fill gaps or satisfy doubts they may have had about the complainant's reliability.

[103] If the evidence was led in the prosecution case at the request of the defence for tactical reasons, the judge should have directed the jury as to the exceptional nature of expert evidence and warned them that they were not required to accept it; it was a matter for them what weight they gave it and that they should not use the evidence to bolster the complainant's evidence or to negate a doubt they might have about her evidence.

[104] Another concerning aspect of Dr Walsh's evidence was that in re-examination the prosecutor elicited, again without objection, that the complainant had told him of threats made against her by the appellant. This conversation must have occurred at the time of his interview in April 2008, many months after the last of the police interviews and long after the complainant made her preliminary complaints. It was

28 See s 9C Evidence Act and Cross on Evidence, Aust ed, 13,065. 29 See s 9A Evidence Act. 30 (1998) 194 CLR 286, 292-293; [1998] HCA 50.

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not led as evidence in chief under s 4A Criminal Law (Sexual Offences) Act 1978 (Qld). The prosecutor's question did not arise out of cross-examination. It was an improper question in re-examination and the answer was inadmissible.

Evidence of threats made by the appellant to the complainant

[105] The appellant contends that the evidence of threats said to be made by the appellant to the complainant in the preliminary complaint evidence and in Dr Walsh's evidence was wrongly admitted at trial. It was not preliminary complaint evidence and was inadmissible hearsay. The appellant relies on a 1966 Queensland decision, R v Braye-Jones,31 where the Court of Criminal Appeal held that, for evidence of fresh complaint to be admissible as demonstrating consistency, the complaint must be of a sexual nature. If admissible, the appellant contends that the judge erred in failing to direct the jury as to the use of that evidence.

[106] WPS and the complainant's grandmother gave evidence, again without objection, that the complainant told them that the appellant had sexually abused her and that he had threatened to harm her if she told anyone.

[107] The Criminal Law (Sexual Offences) Act, s 4A, relevantly provides:

(1) This section applies … to … a trial, in relation to a sexual offence.

(2) Evidence of how and when any preliminary complaint was made by the complainant about the alleged commission of the offence by the defendant is admissible in evidence, regardless of when the preliminary complaint was made.

…

complaint includes a disclosure.

preliminary complaint means any complaint other than: (a) the complainant's first formal witness statement to a police

officer given or in anticipation of a criminal proceeding in relation to the alleged offence; or

(b) a complaint made after the complaint mentioned in paragraph (a)."

[108] Braye-Jones predates s 4A and is of no real relevance to this case. The preliminary complaint made admissible in s 4A is broadly defined. It encompasses the full complaint of sexual assault, including accompanying violence or threats of violence. In this case, the threats of violence were also relevant to the timing of the complaints. I note that there was no application to the primary judge to exclude this evidence, either because it was inadmissible or on the basis of fairness under s 130 Evidence Act and s 4A(3) Criminal Law (Sexual Offences) Act. The evidence was admissible under s 4A.

Evidence of sexual abuse by the complainant's father

[109] The appellant's counsel contends that inadmissible evidence about sexual abuse of the complainant by her father was wrongly led, and that the prosecution case was opened in an inflammatory way on the basis that the complainant was a "casual sex

31 [1966] Qd R 295.

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object of both her father and [the appellant]". He contends that a miscarriage of justice has resulted.

[110] Again, this evidence was led without objection and no objection was taken to the Crown prosecutor's opening. It seems probable that the appellant's counsel made a tactical decision to allow the prosecution to lead evidence of the sexual abuse of the complainant by her father. It is true that he did not suggest to the complainant that she had been abused by her father and as a result had mistakenly accused the appellant of similar conduct. The judge's summation of the defence case did not suggest that such a claim was a major part of the defence case. Unless led by the prosecution, at the request of the defence for tactical reasons, it is difficult to see how the complainant's evidence about her sexual abuse at the hands of her father could be admissible in the appellant's trial. As the appeal against conviction is to be allowed and a re-trial ordered in any case, it is unnecessary to discuss this ground of appeal further. If there is a new trial, defence counsel must decide on instructions whether to investigate the relationship between the complainant and her father.

The application for leave to appeal against sentence

[111] As the appeal against conviction must be allowed, it is unnecessary to deal with the application for leave to appeal against sentence.

ORDERS:

1. The appeal against conviction is allowed.

2. The convictions on counts 1, 3, 9 and 11 are set aside.

3. A re-trial is ordered on counts 1, 3, 9 and 11.

[112] FRASER JA: I agree with the reasons for judgment of McMurdo P and the orders proposed by her Honour.

[113] DOUGLAS J: I agree with the reasons for judgment and the orders proposed by the President.